To better assist our clients in managing this new M&A landscape in the United States and Europe, our M&A Group has prepared an ongoing series of S&C Memos, Podcasts and Webinars that outline and explain important developments. Topics include the impact of the pandemic on shareholder activism and unsolicited offers, best practices for addressing and allocating risk in M&A deals, expected delays in regulatory merger reviews, and related developments with respect to corporate governance and financing.
Partner Contacts: Nicolas Bourtin, Catherine M. Clarkin, Jared M. Fishman, Julia M. Jordan, Marc Treviño and Benjamin H. Weiner
RECENT CLIENT GUIDANCE
Delaware Court Issues Important COVID-Related M&A Opinion
December 4, 2020 – In its first decision dealing substantively with the impact of COVID-19 on busted deal litigation, the Delaware Court of Chancery held that a buyer was within its rights to terminate an agreement to purchase a business owning 15 luxury hotels for $5.8 billion. In the 242 page Opinion in AB Stable VIII LLC v. Maps Hotels and Resorts One LLC et al., Vice Chancellor J. Travis Laster held that although the effects of COVID-19 did not qualify as a Material Adverse Effect (“MAE”), the buyer was nonetheless entitled to cancel the transaction because the seller breached its interim operating obligations. Being the first word from the Court of Chancery on these M&A COVID-related issues, this decision provides some useful guidance on the interpretation of MAE and ordinary course covenants that are ubiquitous in transaction agreements.
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Frank Aquila Talks to Reuters About Dealmaking in the PandemicNovember 24, 2020 – Frank Aquila, global head of Sullivan & Cromwell's M&A practice, spoke to Reuters for a Q&A about the effects of the COVID-19 pandemic on M&A, how it's different from the global financial crisis, and whether virtual dealmaking is here to stay.
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| Lessons From the 2020 Proxy Season: Human Capital Proposals October 13, 2020 – Marc Treviño, co-head of the Firm’s corporate governance practice and managing partner of its executive compensation group, discusses how the COVID-19 pandemic and other recent events may increase the prevalence of human capital proposals submitted by shareholders following the 2020 proxy season. Marc explores why more companies are likely to adopt or expand public disclosure on human capital management next year in response to growing pressure from investors and regulators. He also outlines changes to expect for specific categories of human capital proposals, including those related to diversity, arbitration and social capital. Watch Our Webinar |
| Lessons From the 2020 Proxy Season: Virtual Shareholder Meetings October 5, 2020 – Melissa Sawyer, M&A partner and co-head of the Firm’s Corporate Governance & Activism Practice, discusses the impact of the COVID-19 pandemic on shareholder meetings for U.S. issuers during the 2020 proxy season, when meetings were largely virtual for the first time. Melissa provides an overview of how companies and stakeholders have reacted to the shift. She also looks ahead to how the evolving expectations of investors might affect the format of meetings in 2021. Watch Our Webinar |
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Frank Aquila, Melissa Sawyer and June Hu Author Bloomberg Law Article on ESG Issues in Post-Pandemic M&ASeptember 16, 2020 – S&C partners Frank Aquila and Melissa Sawyer and associate June Hu discuss how businesses should weigh environmental, social and governance (“ESG”) factors when considering acquisitions in the post-pandemic world in an article published in Bloomberg Law.
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| S&C Critical Insights – Recent M&A and Litigation Developments in Delaware August 11, 2020 – In this episode of S&C’s Critical Insights podcast series, Litigation partners John Hardiman and Brian Frawley join M&A partner Matt Goodman to provide an overview and analysis of recent Delaware corporate law developments. Listen to our Podcast |
M&A Hot Topics Quarterly Update – Q2 2020July 8, 2020 – S&C published its M&A Hot Topics Quarterly Update for the second quarter of 2020. The publication highlights recent significant M&A trends and developments, including updates related to topics including: M&A COVID-19 Considerations, Regulatory Developments, Delaware Developments, U.S. Antitrust and Non-U.S. Regulatory.
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European M&A and Corporate Governance Hot Topics Update – June 2020June 15, 2020 – S&C has issued its second European M&A and Corporate Governance newsletter. Our lawyers explore precautionary defenses in the COVID-19 environment, boards’ duties in German hostile takeovers, UK Competition and Markets Authority actions, and shareholder activism in France.
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Week of June 1, 2020
June 5, 2020 – U.K. Covid Corporate Financing Facility: U.K. Government Updates Terms of Covid Corporate Financing Facility (Memo)
Week of May 25, 2020
May 28, 2020 – S&C Private Equity Lawyers Explain Investment Landscape in COVID-19 Environment (Article)
Week of May 11, 2020
May 15, 2020 – COVID-19 Crisis: European M&A Developments Q&A (Guide)
May 15, 2020 – New Treasury Rule Implements CFIUS Filing Fees (Podcast)
May 12, 2020 – S&C Mergers & Acquisitions Leaders Discuss COVID-19 Impact on Dealmaking (Video Podcast)
Week of May 4, 2020
May 6, 2020 – Frank Aquila Talks to Barron’s About Increased Regulatory Scrutiny Around M&A Deals (Press)
Week of April 27, 2020
May 1, 2020 – Proposed Pandemic Anti-Monopoly Act (Memo)
May 1, 2020 – CFIUS Filing Fees: Filing Fees Effective for Transactions Entered Into On or After February 13, 2020 (Memo)
April 27, 2020 – The Impacts of COVID-19 on U.K. M&A (Podcast)
Week of April 20, 2020
April 22, 2020 – Heightened Scrutiny of Foreign Investments in France (Memo)
April 20, 2020 – Frank Aquila Interviewed by Barron’s on Shift in M&A Activity (Press)
April 20, 2020 – Temporary Measures Announced to Assist U.K. Issuers (Podcast)
April 20, 2020 – The Value of PIPE Transactions During COVID-19 (Podcast)
Week of April 13, 2020
April 15, 2020 – Update — UK’s FCA Announces Temporary Measures Designed to Assist Issuers (Memo)
April 14, 2020 – Germany to Adopt Increased Level of Scrutiny for Foreign Investments (Memo)
April 13, 2020 – COVID-19 Pandemic Impacts Previously Announced M&A Transactions (Memo)
Week of April 6, 2020
April 9, 2020 – S&C Critical Insights – U.K. Corporate Financing Facility During Covid-19 (Podcast)
April 9, 2020 – S&C Critical Insights – Australian Legislative and Regulatory Developments During Covid-19 (Podcast)
April 9, 2020 – S&C Publishes M&A Hot Topics Quarterly Update – Q1 2020 (Update)
April 7, 2020 – U.K. Covid Corporate Financing Facility (Memo)
April 6, 2020 – Frank Aquila and Melissa Sawyer Author Corporate Secretary Article on Activism After the Pandemic (Article)
Week of March 30, 2020
April 2, 2020 – Frank Aquila Interviewed by Bloomberg TV on M&A Market’s Path Forward (Press)
April 1, 2020 – Frank Aquila Interviewed by New York Times on How Coronavirus Creates Shift in Demand for Legal Advisers (Press)
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Antitrust
Proposed Pandemic Anti-Monopoly ActMay 1, 2020 – On Tuesday, Senator Elizabeth Warren (D-Mass.) and Representative Alexandria Ocasio-Cortez (D-NY-14) announced plans to introduce the Pandemic Anti-Monopoly Act (the “Proposed Act”). The Proposed Act would effectively halt mergers and acquisitions activity for certain types of companies and investment funds until the Federal Trade Commission (the “FTC”) “determined that small businesses, workers, and consumers are no longer under severe financial distress.”
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Week of April 13, 2020
April 14, 2020 – CMA Prohibits Merger That DOJ Tried – But Failed – To Block (Memo)
Week of April 6, 2020
April 10, 2020 – EU State Aid: European Commission Expands COVID-19 State Aid Temporary Framework (Memo)
For additional resources, please click here.
Corporate Governance
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NYSE Provides Temporary COVID-19 Exception From Shareholder Approval Requirements Under 20% RuleMay 21, 2020 – In light of the impact of the COVID-19 pandemic, the New York Stock Exchange LLC filed notice of a proposed rule change on May 14 with the Securities and Exchange Commission, which became effective immediately. Specifically, Section 312.03T (the “Temporary Rule”) of the NYSE Listed Company Manual (the “Manual”) provides a limited temporary exception from the application of the shareholder approval requirements in Section 312.03 of the Manual—also known as the “20% Rule”—and a limited attendant exception from the requirements of Section 303A.08 of the Manual (Shareholder Approval of Equity Compensation Plans). The Temporary Rule is substantially similar to Nasdaq Listing Rule 5636T, which was filed by The Nasdaq Stock Market LLC on May 4, 2020.
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Week of May 18, 2020
May 18, 2020 – Frank Aquila, Melissa Sawyer and Ashlyann Harrison Look at Fiduciary Duties in the Zone of Insolvency for Bloomberg Law (Article)
Week of May 11, 2020
May 11, 2020 – NASDAQ Provides Temporary COVID-19 Exception From Shareholder Approval Requirements Under 20% Rule (Memo)
Week of April 6, 2020
April 6, 2020 – Frank Aquila and Melissa Sawyer Author Corporate Secretary Article on Activism After the Pandemic (Article)
April 6, 2020 – Melissa Sawyer Discusses Post-Pandemic Activism With Acuris (Article)
April 6, 2020 – Considerations for Directors During COVID-19 (Podcast)
For additional resources, please click here.