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In June 2019, the Delaware Supreme Court issued a decision reaffirming a risk of director liability where there is no board-level reporting process for essential compliance matters.  The facts of the case arise from a 2015 listeria outbreak at Blue Bell manufacturing which resulted in the death of three people. The Delaware case reaffirmed the position that directors may be subject to liability if the director “(1) completely fail[ed] to implement any reporting or information system or controls, or (2) having implemented such a system or controls, consciously fail[ed] to monitor or oversee its operations thus disabling themselves from being informed of risks or problems requiring their attention.”  
Viewpoint-Landing Mergers Acquisitions Mintz

Control of Third Party Claims

April 22, 2019 | Alert | By Marc Mantell, Matthew E. Maguire

Indemnification provisions in private company M&A contracts have received a lot of attention in recent years. These provisions are used to allocate risk among participants but there has been a lack of attention paid to another critical provision of these contracts. We highlight the frequency of certain provisions that shift control of these claims and examine the merits of various other approaches.
Viewpoint General

Key Takeaways from Akorn v. Fresenius

November 2, 2018 | Video | By Steve Gulotta

In Akorn v. Fresenius, the Delaware Court of Chancery determined that Fresenius validly terminated its agreement to acquire Akorn on the grounds of a material adverse change affecting Akorn’s business. Steve Gulotta discusses the significance of the decision and shares key takeaways.
Viewpoint General
This article reviews the Delaware Court’s Akorn decision, which allowed a buyer to escape an acquisition transaction because of a material adverse change affecting the seller’s business.

President Signs Legislation Reforming CFIUS & Export Controls

August 28, 2018 | Alert | By Alexander Hecht, R. Neal Martin

Congress has continued its 57-year tradition of passing an annual defense authorization bill with the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year 2019 finalized by Congress on August 1 and signed into law by President Trump on August 13. The NDAA makes important reforms and updates to the process by which investments in U.S. businesses by foreign persons are reviewed by the Committee on Foreign Investment in the United States (CFIUS) and updates and codifies Department of Commerce practices related to export controls.

What to Do Now if You Want to Sell Your Company

August 3, 2018 | Advisory | By Jeremy Glaser

The global M&A market has remained strong from the end of 2017 into 2018, with the total deals announced in the first half of 2018 making it the best period for global M&A yet. With stockholders pressuring larger companies to grow their revenues and the strong liquidity position of many companies, it is a sellers’ market. For companies looking to sell and participate in the record-breaking 2018 global M&A market of $890.7 billion in Q1 and $889 billion closed with $1.3 billion announced in Q2,2 the toughest question is often how to start.

Not Just Mergers – FTC Highlights Commonly Missed HSR Reportable Transactions

May 16, 2018 | Alert | By Bruce Sokler, Robert Kidwell, Farrah Short

The Premerger Notification Office (the “PNO”) of the Federal Trade Commission (the “FTC”) recently issued a reminder about often overlooked “transactions” that may require notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”).

“No Shop” Clause Radioactive for Merger’s “Failing Firm” Defense

July 21, 2017 | Alert | By Bruce Sokler, Farrah Short

Last week a Delaware federal district court unsealed its earlier opinion blocking the merger of two radioactive waste disposal companies. 
Although the Federal Trade Commission currently is short-handed with one Democrat and one Republican serving on the Commission (out of a normal lineup of five), today they showed that bi-partisan consensus still can exist in Washington. 
The Federal Trade Commission (“FTC”) and the State of Illinois successfully concluded their challenge to the proposed merger of Advocate Health Care and NorthShore University Health System earlier this month.
The IPO market in 2016 was abysmal, especially for the life sciences sector. Annual IPO proceeds fell to the lowest level since 2003. The IPO market forecast for 2017 is uncertain.
The prospect of unknown business risks between buyers and sellers is often a major hurdle in mergers and acquisitions deal negotiations. Neither side wants to assume responsibility for issues such as financial statement errors, taxes, contracts, intellectual property, or undetected compliance violations.
Recently, there have been a number of sales of well-known and well-respected craft breweries to the major beer producers. In addition, there have been a smaller number of sales of craft breweries to private equity investors. Is one type of buyer better than the other from the perspective of the selling brewery?

FTC Enforcement and Hershey Hospital Merger - Webinar this Friday

September 28, 2016 | Blog | By Rachel Irving Pitts

Join us this Friday at 1:30 pm EDT for a webinar with two of our Antitrust colleagues, Robert Kidwell and Bruce Sokler. They will discuss recent events in the Hershey Hospital merger and their impact on FTC's hospital merger enforcement program. Learn more about these recent updates from the comfort of your computer in our one-hour webinar.
On Tuesday, June 14, 2016, the U.S. District Court for the Northern District of Illinois declined to temporarily block the proposed merger of Advocate Health Care Network and NorthShore University HealthSystem in the Chicago area, handing the FTC its second hospital merger loss this year.
The Third Circuit granted on Tuesday the Federal Trade Commission’s (“FTC”) request for an injunction pending appeal of the proposed merger between Penn State Hershey Medical Center and Pinnacle Health System. 
Viewpoint General

Don’t Make These Ten Mistakes When Selling Your Business

January 7, 2016 | Article | By Jeremy Glaser

Over my three decades of practicing corporate law, I have helped hundreds of founders sell their businesses. In the process of helping them achieve a successful transaction, I have noted ten common mistakes that can cost the founders money by way of a lower sale price or higher expenses and that can delay or prevent the successful closing of the sale transaction.
When it comes to mergers and acquisitions involving at least one applicable large employer (ALE), the substantive rules governing employer shared responsibility (under Internal Revenue Code § 4980H) and the corresponding reporting rules (under Internal Revenue Code § 6056) share at least one thing in common: we don’t yet know how they work.
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