David B. Feirstein, P.C. - Partner

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David B. Feirstein, P.C.

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New York
Phone: +1 212-446-4861
Fax: +1 212-446-4900
Overview News Events Publications
11/20/2017 - M&A Update
Kirkland & Ellis LLP
Making Sure Your Contract Rights Don’t Spin Away
Most commercial and corporate contracts provide that the agreement is binding on a party’s “successor and assigns”. This boilerplate clause, coupled with the legal consequences of a stock purchase or merger, covers most corporate transaction scenarios and ensures that the agreement remains with, and binding on, the business that signed the contract.
04/19/2017 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - April 19, 2017
This issue includes the articles, "Earn-Outs — (Be)Devil is in the Detail," which discusses two recent Delaware Chancery Court decisions that offer guidance to parties negotiating earnouts and milestones in acquisition agreements, and "HSR Gun-Jumping Update," which discusses a recent "gun-jumping" case emphasizing that merging parties must avoid coordinating business activities during the HSR waiting period.
3/30/2017 - M&A Update
Kirkland & Ellis LLP
Earnouts – (Be)Devil is in the Detail
In an earlier M&A Update, we discussed the attraction of using earnouts to bridge valuation gaps but quoted VC Laster’s astute description of earnouts as “often convert[ing] today’s disagreement over price into tomorrow’s litigation over outcome.” Since then, we have seen a continued steady pace of lawsuits brought by disappointed sellers asserting that an earnout milestone in fact has been satisfied or that the buyer’s failure to use the requisite efforts caused the failure to hit the milestone or maximize the earnout.
Article
Law360
The Evolving M&A Litigation Landscape Post-Trulia
Daniel Wolf and David Feirstein authored an article regarding changes in the mergers and acquisition landscape following the Delaware Chancery Court's Trulia decision.
08/18/2016 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - August 18, 2016
This issue includes the article, "Whack-a-Mole: The Evolving Landscape in Pubco M&A Litigation," which discusses a recent Delaware decision on disclosure settlements that has changed the risk profile of deal litigation and highlighted new ways to manage that risk.
8/15/2016 - M&A Update
Whack-a-Mole: The Evolving Landscape in M&A Litigation Following Trulia
The landmark January 2016 Delaware Chancery Court decision in Trulia has led to dramatic changes in the M&A litigation landscape.
6/3/2016 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - June 3, 2016
This issue includes the articles “Private Fund Manager Settles SEC Enforcement Case for Acting as Unregistered Broker,” which discusses the SEC’s first enforcement action alleging that a private equity fund manager acted as an unregistered broker-dealer, and “Divorce, Wall Street Style,” which discusses the macro trends surrounding terminated M&A transactions.
5/23/2016 - M&A Update
Kirkland & Ellis LLP
Divorce, Wall Street Style
Taking a page from the Hollywood tabloids, recent deal press has been overtaken by a stream of reported breakups, real or speculated.
3/9/2015 - M&A Update
Kirkland & Ellis LLP
Crossing State Lines Again – Appraisal Rights Outside of Delaware
Although once an afterthought on the M&A landscape, in recent years appraisal rights have become a prominent topic of discussion among dealmakers. In an earlier M&A Update we discussed a number of factors driving the recent uptick in shareholders exercising statutory appraisal remedies available in cash-out mergers. With the recent Delaware Supreme Court decision in CKx and Chancery Court opinion in Ancestry.com, both determining that the deal price was the best measure of fair price for appraisal purposes, and the upcoming appraisal trials for the Dell and Dole going-private transactions, the contours of the modern appraisal remedy, and the future prospects of the appraisal arbitrage strategy, are being decided in real-time.
1/20/2015 - M&A Update
Kirkland & Ellis LLP
Jurisdiction Shifting – Creative Structuring Opportunities
As we have noted in prior M&A Updates, when dealmakers face a transaction where one or both of the parties are incorporated outside the Delaware comfort zone, they often confront unexpected structuring issues unique to entities or deals undertaken in that state or country. These may include corporate law, tax, accounting or structuring concerns and, most often, the deal teams will have to adjust the transaction terms to accommodate these issues.
12/2/2014 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - December 2, 2014
This issue includes the article “Slipping Away? — Enforceability of Obligations Against Non-Signatories in Private Mergers,” which discusses that a recent Delaware decision points to steps a buyer of a private company via a merger can take to ensure that certain post-closing obligations are enforceable against target stockholders.
12/2/2014 - M&A Update
Kirkland & Ellis LLP
Slipping Away? – Enforceability of Obligations Against Non-Signatories in Private Mergers
A recent Delaware decision in Cigna provides important guidance on simple yet important steps that buyers of private companies using a merger structure can take to more effectively impose certain post-closing obligations on stockholders who do not sign agreements to support the deal.
11/12/2014 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - November 12, 2014
This issue includes the article “Controlling Stockholders in Delaware – More Than a Number,” which discusses how two Chancery Court decisions involving public companies with significant ties to a private equity sponsor confirm that Delaware takes a flexible and fact-specific approach when determining whether a stockholder has “control” for purposes of judicial review of a transaction.
10/30/2014 - M&A Update
Kirkland & Ellis LLP
Controlling Stockholders in Delaware - More Than a Number
Two recent Chancery Court decisions, Crimson Exploration and KKR Financial, confirm that Delaware takes a flexible and fact-specific approach to determining whether a stockholder is deemed to be “controlling” for purposes of judicial review of a transaction. It is important for dealmakers to understand when the courts may make a determination of control, both to properly craft a defensible process and to understand the prospects for resulting deal litigation.
6/17/2014 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - June 17, 2014
This issue includes the article “Taking Stock - Value Protection in Stock and Mixed Consideration Deals,” which discusses how, as private equity sponsors contemplate exiting investments and strategic buyers ramp up their M&A activity, the use of acquirer stock as acquisition currency has become more common, particularly in light of an increasingly bullish outlook in the C-level suite and higher and more stable stock market valuations.
6/10/2014 - M&A Update
Kirkland & Ellis LLP
Taking Stock - Value Protection in Stock and Mixed Consideration Deals

As confidence in M&A activity seems to have turned a corner, the use of acquirer stock as acquisition currency is a serious consideration for executives and advisers on both sides of the table. A number of factors play into the renewed appeal of stock deals, including an increasingly bullish outlook in the C-level suite and higher and more stable stock market valuations, as well as deal-specific drivers like the need for a meaningful stock component in tax inversion transactions.

10/24/2013 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - October 24, 2013
This issue includes the article “Time is Money - Ticking Fees,” which discusses how ticking fees and other similar increasing fee arrangements create a quantifiable economic incentive for buyers to close a deal in a timely manner.
10/9/2013 - M&A Update
Kirkland & Ellis LLP
Time is Money — Ticking Fees
In any transaction facing a meaningful delay between signing and closing, dealmakers on both sides of the table spend a considerable amount of time thinking about allocating the various risks resulting from that delay (e.g., regulatory, business and financing).
6/20/2013 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter - June 20, 2013
This issue includes the article “Custom (Go-) Shopping,” which reports that deal protections terms should not be viewed as a straightjacket dictating inflexible boundaries. Instead, there is room for creativity to tailor market terms to the real-world circumstances of a particular transaction, which is precisely what courts expect boards and their advisors to do.
6/17/2013 - M&A Update
Kirkland & Ellis LLP
Custom (Go-)Shopping
The Delaware courts have often repeated the bedrock principle that there is no one path or blueprint for the board of a target company to fulfill its Revlon duties of seeking the highest value reasonably available in a sale transaction.
5/1/2013 - M&A Update
Kirkland & Ellis LLP
Appraisal Rights — The Next Frontier in Deal Litigation?
Appraisal, or dissenters’, rights, long an M&A afterthought, have recently attracted more attention from dealmakers as a result of a number of largely unrelated factors.
4/17/2013 - M&A Update
Kirkland & Ellis LLP
Setting the Record (Date) Straight
A record date, often viewed in the merger context as a mere mechanic to be quickly checked off a “to do” list, creates a frozen list of stockholders as of a specified date who are entitled to receive notice of, and to vote at, a stockholders’ meeting.
3/15/2013 - M&A Update
Kirkland & Ellis LLP
Are All MOEs Created Equal?
With valuations stabilizing and the M&A market heating up, a rebirth of stock-for-stock deals, after a long period of dominance for all-cash transactions, may be in the offing.
2/14/2013 - M&A Update
Kirkland & Ellis LLP
Crown Jewels — Restoring the Luster to Creative Deal Lock-ups?
The “crown jewel” lock-up, a staple of high-stakes dealmaking technology in the 1980s M&A boom, has been showing some signs of life in the contemporary deal landscape, albeit often in creative new forms.
11/12/2012 - M&A Update
Kirkland & Ellis LLP
Seinfeld and Director Compensation: A Decision That Wasn’t About Nothing
As companies prepare for the upcoming proxy season, the recent Delaware decision in the Seinfeld case offers a cautionary note for boards as they consider director equity and incentive awards and the terms of the plans under which they are issued.
10/18/2012 - M&A Update
Kirkland & Ellis LLP
Synthes-is: Some Answers on Controlling Stockholder Liquidity
The long-held view of deal practitioners has been that, absent differential consideration or a rollover of all or a part of its shares, the size of a significant stockholder’s stake in a target should not affect its (and its affiliated directors’) ability to participate in a sale process or represent a conflict of interest that requires specific procedural protections.
9/6/2012 - M&A Update
Kirkland & Ellis LLP
Breakup Fees — Picking Your Number
During the course of negotiations of every public company deal, inevitably the conversation will turn to the amount of the breakup fee payable by a target company to a buyer if the deal is terminated under certain circumstances.
4/26/2012 - M&A Update
Kirkland & Ellis LLP
Don’t Stub Your Toe(hold)
Whether or not to acquire a minority or “toehold” stake in a public company as a preliminary step towards a future business combination has been the subject of tactical debate for many years.
4/16/2012 - PEN
Kirkland & Ellis LLP
Private Equity Newsletter – April 16, 2012
This issue includes the article “SEC Enforcement Eyes Private Equity Fund Managers,” which discusses how the SEC’s Enforcement Division has signaled its intent to increase enforcement actions against private equity fund managers. Also featured is “Custom-Made MAEs – Tailoring Your Risk Allocation,” which discusses that, while the traditional general MAE structure serves a useful purpose, a more tailored approach may be appropriate in certain transactions, particularly when there is a known risk or contingency.
3/8/2012 - Article
The Harvard Law School Forum on Corporate Governance and Financial Regulation
Custom-Made Material Adverse Effect Provisions
Daniel Wolf, David Feirstein and Joshua Zachariah discuss Material Adverse Effect provisions.
2/28/2012 - M&A Update
Kirkland & Ellis LLP
Custom-Made MAEs – Tailoring Your Risk Allocation
Regardless of the state of the deal market, Material Adverse Effect, or MAE/MAC, provisions remain among the most hotly contested negotiating points for dealmakers.
2/22/2012 - Article
The Harvard Law School Forum on Corporate Governance and Financial Regulation
Spin-offs and Reverse Morris Trusts
Daniel Wolf, Sara Zablotney and David Feirstein authored this article on the general implications of a spin-off on transformational corporate merger activity and certain structures that may allow for a combination of the two.
2/1/2012 - M&A Update
Kirkland & Ellis LLP
Having Your Spin and Eating Your Deal Too — Spin-offs and Reverse Morris Trusts
Even with the recent slowdown in M&A activity, spinoffs have been among the transactions of choice in the past year. With everyone from economic mainstays like ConocoPhillips and Kraft to high-profile new players like TripAdvisor engaging in separation deals in the latest round of deconsolidation, it is an opportune time for dealmakers to consider the general implications of a spin-off on transformational corporate merger activity and certain structures that may allow for a combination of the two.
12/6/2011 - M&A Update
Kirkland & Ellis LLP
Forward-Looking Statements — Deal Market Trends for 2012
With the M&A market recovery losing steam in the second half of 2011, dealmakers are faced with increased global macro-economic jitters, election year incertitude and tightened financing markets.
10/6/2011 - M&A Update
Kirkland & Ellis LLP
Noble Prose: Sound Bites on Public M&A
Dealmakers working on public M&A transactions have recently seen increased focus on, and discussion of, what buyers and target boards “can” and “should” do in a sale context.
9/28/2011 - M&A Update
Kirkland & Ellis LLP
Good Faith — Not Just an Aspiration
In a recent Kirkland M&A Update, we reviewed a Georgia appellate decision upholding a $281 million jury award to a spurned suitor, showing that even careful drafting of “non binding” language in a letter of intent may not be effective in avoiding unanticipated binding obligations if the parties’ conduct is inconsistent with those provisions.
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