Del. Chancery Enforces Forum Selection Bylaw for Actions Filed Before Bylaw’s Effectiveness
The Delaware Court of Chancery ruled that Tesla’s newly adopted Texas forum‑selection bylaw governs pending derivative actions, even though the suits were filed under the old Delaware bylaw. Vice Chancellor David dismissed the plaintiffs’ “vested rights” and equity arguments, relying on DGCL Section 266(e) and the principle that bylaws can be amended without impairing pre‑existing claims. The decision confirms that a corporation’s stockholders may shift the venue for internal litigation after a redomestication, provided the new bylaw was publicly announced before the actions began.
Carve-Outs: Practical Tips for Improving Deal Certainty
The latest AURELIUS Carve‑Out Survey shows roughly 80% of executives anticipate a rise in non‑core divestitures in 2026, with 73% citing refocusing on core operations as the primary driver. Trade‑related uncertainties now affect 72% of respondents, while deleveraging has fallen...
Antitrust: The Implications of Regulatory Termination Fee Insurance
Regulatory Termination Fee (RTF) insurance is an emerging product that moves the risk of reverse termination fees from buyers to insurers. The policy’s premium is typically modest, leaving buyers only a small deductible. By insulating buyers from the full fee,...
Integration: Post-Closing Cyber Risks
A new FTI Consulting report reveals that cyber‑attacks frequently strike companies after M&A closings, with more than two‑thirds of affected deals reporting negative consequences. Nearly half of those incidents led to reduced deal value, and 20% caused delays or pauses....
Exit Strategies: The Dual Track Option
Investors targeting high‑growth companies often adopt a dual‑track exit, simultaneously preparing for an IPO while courting strategic or financial buyers. This approach creates competitive pressure, allowing the company to select the path that yields the highest valuation as market conditions...
Fiduciary Duties: An Overview of the Duty of Disclosure
Faegre Drinker partners Oderah Nwaeze and Angela Lam published an overview of Delaware’s fiduciary duty of disclosure, highlighting how boards must handle management financial projections. The article clarifies that speculative or unreliable forecasts are exempt, but projections used in ordinary...
Books & Records: Courts May Consider Post-Demand Evidence in “Credible Basis” Assessment
The Delaware Supreme Court, in Paramount Global v. Rhode Island Office of the Treasurer, affirmed that courts may consider post‑demand evidence and reliable anonymous news reports when assessing a stockholder’s credible‑basis claim under Section 220. The ruling emphasizes that such evidence...
Del. Chancery Addresses When “Mere Puffery” Crosses the Fraud Line
The Delaware Court of Chancery issued a letter opinion in Shareholder Representative Services v. Sphera Solutions, clarifying when optimistic buyer statements cross from mere puffery into actionable fraud. The magistrate held that Sphera’s promise to substantially increase its marketing budget...
Delaware Law: M&A Checklist
Morris Nichols has released the 2026 edition of its 192‑page “Mergers & Acquisitions: A Delaware Checklist,” available for free download. The guide compiles the most critical Delaware court decisions on fiduciary duties, poison pills, deal protections, appraisal rights, preferred stock...
M&A Trends: PE Take Privates on the Rise
EY Parthenon’s February 2026 report shows private‑equity‑backed take‑private deals rising 9% month‑over‑month, while overall M&A deal value jumped 139% as transaction volume fell 15%. Large‑scale deals are driving the surge: transactions of $100 million + grew 224% in value and $1 billion + deals surged...
Activism: Portfolio Optimization as a Driver of M&A Activism
Alvarez & Marsal’s March 2026 US Activist Alert identifies three forces fueling M&A‑related activism: higher foreign direct investment, a push for portfolio optimization, and tighter margin discipline. The report cites Elliott Management’s recent campaigns at Honeywell and PepsiCo as proof that activists...
Premerger Notification Office Accepting Old HSR Form Again
A Fifth Circuit panel denied the FTC’s request for a stay, activating a district court ruling that vacates the 2024 HSR filing form. As a result, the FTC’s Premerger Notification Office will again accept the pre‑February 10 2025 HSR form, though filers...
Sale of Business Non-Competes: The Forfeiture for Competition Alternative
Mayer Brown’s March 2026 memo urges acquirers to replace traditional non‑compete covenants with forfeiture‑for‑competition (FFC) clauses after Delaware courts increasingly invalidate non‑competes on reasonableness grounds. An FFC ties a supplemental cash benefit to the seller’s agreement not to compete, and because...
Rollover Equity: Considerations for a Seller
John Jenkins highlights key considerations for sellers contemplating equity rollovers in M&A transactions. The blog stresses that call options embedded in buyer agreements can allow the acquirer to repurchase the seller’s rolled‑over stake, often at below‑market prices and over extended...
Special Committees: A Guide for the Perplexed
Debevoise released a practical guide on special committees in conflict transactions, detailing when to form them, member selection, and operational protocols. A key focus is the appointment of legal and financial advisors, emphasizing that the committee—not the company—must independently choose...
