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Ropes & Gray is a preeminent global law firm with more than 1,200 lawyers and legal professionals serving clients in major centers of business…
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Ropes & Gray LLP | USA | 3 Jul 2019

In Delaware, notices and deadlines matter

A recent Delaware Court of Chancery decision is illustrative of the principle that merger partners should not assume that anything less than strict compliance with notice requirements (particularly when they relate to termination rights) and deadlines in a merger agreement will be enforced. The case is also a cautionary tale of why one merger partner should never assume that the other merger......
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Ropes & Gray LLP | USA | 15 May 2019

DOJ commentary underscores importance of pre-acquisition diligence

In a July 2018 conference speech the Department of Justice (DOJ) deputy assistant attorney general (DAAG) for the Criminal Division underscored the importance of pre-acquisition Foreign Corrupt Practices Act (FCPA) diligence. The DAAG's remarks reinforced FCPA enforcement as a DOJ priority and provided a disclosure roadmap for buyers that uncover FCPA-related misconduct both pre and......
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Ropes & Gray LLP | Global, USA | 17 Apr 2019

Addressing #MeToo in M&A

Companies in all industries are facing heightened reputational and legal risks in the #MeToo era, as employees are more likely to identify and report instances of misconduct or discrimination in the workplace (and such instances are more likely to become public). In the world of M&A, reputational and legal risks are ultimately risks to the bottom line – prompting private equity sponsors,......
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Ropes & Gray LLP | USA | 10 Apr 2019

Chancery Court revisits fair value analysis in AOL appraisal action

The Delaware Court of Chancery has issued its original opinion in a consolidated appraisal action arising out of Verizon Communications Inc's 2015 acquisition of AOL Inc. In contrast to a recent string of Delaware appraisal decisions, the court determined that reliance on the $50 per share merger price for determining AOL's statutory fair value was not warranted.
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Ropes & Gray LLP | USA | 3 Apr 2019

Delaware's amendments apply market-out exception to appraisal rights for Section 251(h) mergers

Delaware Governor John Carney recently signed into law amendments to the Delaware Limited Liability Company Act and the Delaware General Corporation Law. Notably, the amendments expand the application of the market-out exception to appraisal rights, which has long been applicable to 'long-form mergers', to also include 'medium-form mergers'.
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Ropes & Gray LLP | USA | 27 Mar 2019

Court provides guidance on applicability of transaction price as measure of fair value

Two Delaware appraisal decisions issued in 2018 illustrate that, following the Delaware Supreme Court's decisions in Dell and DFC, the Delaware courts remain willing to give substantial evidentiary weight to a deal price as an indicator of fair value where the underlying transaction is the product of an open process characterised by the objective indicia of reliability.
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Ropes & Gray LLP | USA | 13 Mar 2019

Chancery Court applies MFW framework in private equity merger transaction

A recent decision applied the framework established by the Delaware Supreme Court in Kahn v M&F Worldwide Corp (MFW) and found that a merger transaction with a controlling private equity fund on both sides was entitled to business judgment review. The decision outlines the elements of the MFW roadmap and clarifies that its ab initio requirement requires only that the elements be in place......
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Ropes & Gray LLP | USA | 5 Dec 2018

Delaware appraisal decisions

During the second quarter of 2018, the Delaware Supreme Court affirmed, without opinion, the Court of Chancery's decision in ACP Master, in which the Court of Chancery had appraised Clearwire's shares at a significant discount compared with the deal price. Unfortunately, the Delaware Supreme Court's affirmance without discussion or opinion provides deal makers with little additional clarity......
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Ropes & Gray LLP | USA | 14 Nov 2018

Use of 'ticking fee' in Novartis-AveXis transaction

Novartis AG recently entered into a definitive agreement to acquire AveXis, Inc – a US-based, clinical stage gene therapy company – for approximately $8.7 billion pursuant to a two-step tender offer transaction. Notably, the Novartis-AveXis merger agreement contained a variation of a 'ticking fee' provision in the event that Novartis elected to extend the closing date of the transaction in......
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Ropes & Gray LLP | USA | 17 Oct 2018

Chancery court allows Straight Path stockholders to pursue direct claims against company's former controlling stockholder

The Delaware Court of Chancery recently denied a motion to dismiss the claims of Straight Path Communi­cations Inc's stockholders against the company's controlling shareholder. The background of this case involved IDT, which is controlled by its former CEO, Howard Jonas, and was Straight Path's former parent company. When IDT spun out Straight Path, it agreed to indemnify Straight Path for......
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