In December 2007, the Pension Benefit Guaranty Corporation Appeals Board released its decision that a private equity fund was liable for the pension underfunding of one of the fund's portfolio companies. In this edition of PEN, Kirkland partners Matthew Antinossi and Jack S. Levin discuss this decision and its implications for private equity funds.
In this edition of PEN, Kirkland partner Robert M. Hayward explains amendments to Rule 144 issued by the SEC while partner Bruce I. Ettelson and associates Jeffrey M. Loeb and John M. Muno discuss new restrictions on investment in Sudan by Illinois state retirement systems.
In this edition of PEN, Chicago partner Jack S. Levin testifies before the House Ways & Means Committee, partner Scott A. Moehrke and associate John L. Budetti discuss proposed changes to the SEC's commonly used Reg D exemption from registration for a private placement of securities, and Mr. Moehrke teams up with partner Nabil Sabki and associate Sara A. Robinson to examine the SEC's newly-adopted antifraud rule.
In the recent case of In re: The Topps Company Shareholders Litigation, the Delaware Chancery Court, in a decision by Vice Chancellor Strine, held that the board of directors of The Topps Company most likely breached its fiduciary duties by misusing a standstill agreement with The Upper Deck Company. In this edition of M&A Notes, Kirkland partners Thomas Christopher and Jeffrey Symons discuss this ruling and it's significance for M&A practitioners.
A recent Delaware Chancery Court case found that a board of directors' and its special committee's decisions to contact only potential private equity buyers and to not contact any potential strategic buyers prior to entering into a "going private" merger agreement was likely to be found to be unreasonable. In this edition of M&A Notes, Kirkland partners Stephen Fraidin and William Sorabella discuss this recent finding.
On June 14, the ranking Democratic and Republican members of the Senate Finance Committee, introduced legislation that would tax as a corporation any publicly traded partnership or limited liability company that directly or indirectly derives income from investment adviser or asset management services. In this alert, Kirkland partners Jack S. Levin and William R. Welke discuss these proposed new taxes.
In this edition of PEN, Kirkland senior partner Jack S. Levin is invited by the Senate Finance Committee to discuss private equity taxation and Kirkland partner Cathy Fazio, of counsel attorney Jennifer Clarke-Smith and Mergers/Acquisitions Clearance Director Dani Jachino discuss the recently revised Hart-Scott-Rodino Act thresholds.
Partners Steve Tomlinson, David Patrick Eich and Nat Marrs co-authored this article regarding foreign investors' increased interest in the Chinese real estate market.
As more and more companies have been filing their proxy statements under the new SEC executive compensation disclosure rules, it has been interesting to observe how disclosures are interpreted and reported by the media. This alert discusses the reaction to these disclosures and best practices for companies filing under the new rules.
Paul Basta, Leonard Klingbaum and Joshua Sussberg co-authored this article on the subprime lending market.
Tefft Smith, Colin Kass and Scott Abeles co-authored this article regarding antitrust law.
Joint ventures are common in a number of fields, including the chemicals, pharmaceuticals and automotive industries. However, joint ventures frequently run into trouble when the owners' interests diverge. Problems with joint ventures often result in the owners' desire to sell or terminate the joint venture. This article, authored by Kirkland partners Thomas W. Christopher and Jeffrey Symons, and associate Adina Rosenthal discusses some issues that joint venture owners and their counsel should consider when contemplating a sale.
In this edition of PEN, Washington partner Mark L. Kovner discusses the Justice Department's recent antitrust investigation of private equity "club" deals, and Chicago partner Bruce I. Ettelson and New York associate John L. Budetti examine a recent federal court ruling regarding investments in Sudan.
Kirkland partner Geoffrey Levin authored this article regarding private equity.
Pierre-André Dubois and Francisco de Borja Peña Fernández-Garnelo co-authored this feature story on the issue of parallel trading in the pharmaceutical and biotechnology industries.
This article first appeared in From Innovation to Commercialisation 2007, key issues for life sciences companies and university TLOs, published by Intellectual Asset Management (IAM) magazine.
In this edition of PEN, Kirkland partners Jack S. Levin, Margaret A. Gibson and Scott A. Moehrke discuss the SEC's proposed stricter accredited investor test, and partners David Patrick Eich and Erik Dahl, and associate Michel Debolt examine the impact on private equity investors of recent changes in Luxembourg corporate law.
In the last few years there has been a significant increase in shareholder activism. This increase is largely due to the substantial increase in the size and number of hedge funds and their willingness to undertake various actions to effect corporate change. In this issue of M&A Notes, Kirkland partner Thomas W Christopher and associate Yi Claire Sheng discuss 10 rules for dealing with these activist shareholders.
In what has been described in some quarters as an early Christmas present to public companies, the Securities and Exchange Commission unexpectedly released interim final rules on December 22, 2006 that significantly change the reporting and disclosure of equity-based awards to named executive officers and directors. This alert discusses these new rules.
Thomas Christopher and Yi Sheng co-authored this article regarding the increase in shareholder activism.
Since acceding to the World Trade Organization in December 2001, China has undertaken a series of broad legal reforms required by the WTO accession commitments, among others. Many of such reforms materially affect foreign private equity investments in China, which have grown substantially over the same period. In this article, Kirkland Partners David Patrick Eich and Chuan Li discuss these reforms.
In this edition of Kirkland's Private Equity Newsletter (PEN), partners Thomas Christopher and Jeffrey Symons discuss the SEC's recent amendment of its tender offer rules, which now are more user-friendly for acquirers in going-private transactions and other public company acquisitions.
The U.S. Securities and Exchange Commission has amended Rules 13e-4(f)(8)(ii) and 14d-10(a)(2) promulgated under the Securities Exchange Act of 1934, which are generally referred to collectively as the "best-price rule." The best-price rule requires that all shareholders of a company that is subject to a tender offer receive the same price for shares tendered in the offer. In this edition of M&A Notes, Kirkland partners Thomas W. Christopher and Jeffrey Symons and associate Daniel S. Hoverman discuss discuss this amendment and its effects on tender offers.
Stephen Fraidin and Stefanie Wool co-authored this article on special committees and recommendations to ensure that their decisions withstand judicial scrutiny.
Robert Hayward and Theodore Peto co-authored this article on the SEC's new executive compensation disclosure rules.
On October 10, 2006, The Wall Street Journal reported that the U.S. Department of Justice, Antitrust Division office in New York sent letters of inquiry to certain private equity firms regarding bidding practices in corporate auctions. This edition of PEN examines these bidding practices and the effects that this DOJ scrutiny is likely to have.
David Patrick Eich, Chuan Li and Tai Hsia co-authored this article on recent Chinese M&A and private equity reform.
Tai Hsia and Helena Huang co-authored this article on China's improving legal environment for mergers and acquisitions, and restructuring and bankruptcy transactions.
On August 8, 2006, six Chinese government agencies jointly issued the 2006 M&A Rules effective September 8, 2006. The 2006 M&A Rules establish a general legal framework for foreign investors (both strategic and financial investors) to acquire either equity or assets of a Chinese company in exchange for cash or stock of the foreign acquiror. In this Alert, Kirkland partner David Patrick Eich and associates Chuan Li and Tai Hsia discuss these new rules and their impact on investments in China.
In a measure designed to permit hedge funds to accept more pension money, Congress has changed ERISA rules to enable private equity, mezzanine and other investment funds to qualify more easily for exemption from ERISA constraints. In this edition of Kirkland's Private Equity Newsletter, partners Vicki V. Hood, Jack S. Levin and Toni B. Merrick discuss the implications of these rule changes.
Chicago partner Brian Davis authored this article on how the United Recharacterization Cases demonstrate that lease recharacterization can be a powerful weapon in a debtor-tenant's arsenal.
In this edition of Kirkland's Private Equity Newsletter, partner Scott Moehrke and associate Sara Robinson address the Appeals Court's decision to throw out the new SEC rule requiring the registration of hedge fund advisers. Also in this edition, partners John O'Neil and Amy Wu discuss the amendments to the publication requirments for New York limited liability entities.
KKR Private Equity Investors' May 3 sale of $5 billion of partnership units on Euronext (Amsterdam) marks a new chapter for private equity fundraising. In this edition of Kirkland's Private Equity Newsletter, partners Geoffrey W. Levin, Kirk A. Radke and Scott A. Moehrke discuss this new development.
The first edition of Kirkland & Ellis LLP's Private Equity Newsletter has arrived. In this issue, Kirkland partner David Patrick Eich explores China's new rules for foreign strategic investments.
The decision of Vice Chancellor Strine in In Re Cox Communications, Inc Shareholders Litigation (Del.Ch., Cons. C.A. No. 631-N, 6/6/05) is important in that it changes the well-established legal landscape in an attempt to discourage the filing of lawsuits brought merely to coerce settlements by majority shareholders and award substantial legal fees to plaintiff's counsel. In this edition of M&A Notes, Kirkland partner Stephen Fraidin discusses the effects of this ruling and its implications regarding going private transactions.
In May 2005, the Delaware Supreme Court in VantagePoint Venture Partners 1996 v. Examen, Inc. held that Delaware law, not California law, applied when determining the required vote for a merger involving a Delaware corporation having significant ties to California. In this edition of M&A Notes, Kirkland partner Eva Davis comments on the implications of this ruling.
In two Delaware cases dealing with "dead hand" and "slow hand" poison pills, the Delaware Chancery Court made clear the unacceptability of "continuing director" (or existing director) provisions in poison pills. But in CalPERS v. Coulter, the Delaware Chancery revisited the continuing director concept in a different context and did not reject it. Kirkland partner Stephen Fraidin comments on these developments in this edition of M&A Notes.
In a recent decision, the California Court of Appeals held that a plaintiff who alleged that a law firm prepared a disclosure schedule to a merger agreement, knew of material, negative information that should have been disclosed on the schedule and failed to include it on the schedule sufficiently alleged a claim for fraud against the firm. In reaching its decision, the appellate court held that a fraud claim against a lawyer is no different than a fraud claim against anyone else. In this issue of M&A Notes, Kirkland partner Thomas W. Christopher and associate Laura B. Mutterperl comment on this decision and what it means for corporate attorneys nationwide.
It has been extraordinarily rare in the past for directors of publicly traded companies to suffer personal liability in their capacity as directors. Now, certain of the outside directors of WorldCom and Enron have made personal out of pocket settlement payments arising out of cases brought by shareholders of those companies. This edition of M&A Notes offers some observations regarding these settlements from Kirkland partner Stephen Fraidin.
NASD recently requested comment on whether it should propose rules to regulate the identification and disclosure of conflicts of interest of investment banks rendering fairness opinions and to require investment banks to follow specified procedures when rendering fairness opinions. In this issue of M&A Notes, Kirkland partners Thomas W. Christopher and R. Scott Falk, and associate William B. Sorabella offer their views on these matters.
The "American Jobs Creation Act of 2004" signed by the President on October 22, 2004, imposes strict new tax rules on nonqualified deferred compensation. This alert examines the new rules and their implications for affected businesses.
This alert highlights two important changes in the laws governing employee benefits. First, the American Jobs Creation Act of 2004, signed by President Bush on October 22, radically alters the income tax rules for deferred compensation, generally effective January 1, 2005. Second, the Department of Labor issued final regulations on a safe harbor for plan sponsors to select providers and investments for mandatory rollovers from qualified plans to individual retirement accounts.
In what is apparently a case of first impression, the United States Court of Appeals for the Second Circuit found that a stockholder opposing a merger cannot mail to the subject company's other stockholders a duplicate copy of the company's proxy card without complying with the proxy rules of the Securities Exchange Act of 1934. In this edition of M&A Notes, Kirkland partners Thomas W. Christopher and Andrew E. Nagel, and associate William B. Sorabella discuss this ruling and its implications.
The Delaware Chancery Court recently refused to dismiss a complaint against directors of a company which failed to disclose secret merger negotiations while a company sponsored odd-lot stock purchase program was in effect.
Faced with a special committee process that could hardly have been more poorly structured, Justice Jacobs (sitting by designation as Vice Chancellor) reached a number of extraordinary conclusions in the recent Delaware case, In re Emerging Communications, Inc.
On March 11, 2004, the SEC adopted amendments to Form 8-K promulgated under the Securities Exchange Act of 1934. The amendments were originally proposed in June 2002 and are responsive to the "real time issuer disclosure" requirements of Section 409 of the Sarbanes-Oxley Act of 2002. These amendments significantly expand the number and type of events that must be reported on Form 8-K, accelerate the time in which these events must be reported, create a limited safe harbor from liability for failure to timely file certain of the required Form 8-K reports and make other related changes to the form.
In what is apparently a case of first impression, a federal district court recently held that a stockholder opposing a merger can mail to the subject company's other stockholders a duplicate copy of the company's proxy card, together with instructions as to how to use the card to vote against the merger, without complying with the proxy rules of the Securities Exchange Act of 1934. This decision makes it possible for a stockholder that opposes a proposed merger or other transaction requiring stockholder approval to facilitate a vote by other stockholders against the transaction without complying with these proxy rules.
A court may be reluctant to give full effect to an exculpatory provision in a corporation's charter which purports to limit the personal liability of a director for monetary damages for breach of fiduciary duties. Directors must be aware of their duty to act in good faith, and should not rely too heavily on exculpatory charter provisions. Kirkland partners Stephen Fraidin, Daniel J. Eisner and David D. McCusker discuss this issue in the February 4, 2004 edition of M&A Notes.
An unsigned acquisition agreement may be held to be binding on the parties absent an explicit written statement to the contrary. Kirkland partners Stephen Fraidin and Thomas Christopher discuss this issue in the first January 2004 edition of M&A Notes.
Shareholders with large voting positions that seek to increase their holdings may trip up state control share acts which deny shares their voting rights when certain ownership thresholds are crossed. Kirkland partner Stephen Fraidin and associate Natalie Silver discuss these issues in the December 2003 edition of M&A Notes.
On October 14, 2003, the U.S. Supreme Court let stand a Third Circuit decision that stock reclassifications are not categorically exempt from Section 16(b) of the Securities Exchange Act of 1934. New York partner Stephen Fraidin comments on this decision and its implications for companies with complex capital structures in this issue of M&A Notes.
Two recent Federal Court Decisions raise serious questions regarding the enforceability of certain important "boiler plate" provisions in the typical confidentiality agreements used in the proposed sale of the stock of a company and in merger agreements. Kirkland partners Stephen Fraidin and Yosef J. Riemer comment on these developments in the first issue of M&A Notes. This publication is in pdf format, which requires Acrobat Reader.
Kirkland lawyers Gerald Nowak and Stephanie Liang wrote this article about corporate governance. It is the first in a series of six and examines the audit committee's historical relevance.
Chicago partners Jack S. Levin and William R. Welke describe five tax developments important to every private equity investor. The article appeared in the Spring 1999 issue of The Venture Capital Review. This is a PDF file which requires Acrobat Reader.
In this article, Chicago partners Jack S. Levin and William R. Welke explore ways to structure a private equity fund's leveraged buyout of a target in order to obtain the benefits of "recap" accounting. The article appeared in the Spring 1998 issue of The Venture Capital Review. This is a PDF file which requires Acrobat Reader.
