Failure to Provide Audited Financial Statements Precludes Reliance on Corwin


In Re Tangoe, Inc. Stockholders Litigation was one of those situations where everything that could go wrong did.  According to the Plaintiff, the Tangoe directors breached their fiduciary duties to Tangoe stockholders by steering the Company into an ill-advised take-private acquisition with a negative premium by Marlin Equity and recommended... Read More

Topics: M&A, Private Equity, Public Companies and Securities

How to Read a MAC / MAE Clause


Akorn, Inc., v. Fresenius Kabi AG et al will undoubtedly become known as the first case where a Delaware court found a material adverse effect, or MAC (often referred to as a material adverse effect, or MAE), to exist. The opinion also contains a helpful description of how to read... Read More

Topics: Litigation, M&A

FTC Speaks to Timing of Consent Orders


The FTC recently spoke about the time it takes review a consent package after FTC staff and the parties formally submit a settlement package to the Director of the Bureau of Competition. According to the FTC it typically takes four weeks to review a consent package after staff and the... Read More

Topics: M&A

#MeToo Clauses Being Added to Merger Agreements


Some merger agreements are starting to include representations and warranties regarding the absence of allegations of sexual harassment against senior officials. Some examples follow. Brookfield Asset Management’s acquisition of Forest City Realty To the Knowledge of the Company, in the last five (5) years, no allegations of sexual harassment have... Read More

Topics: Employment, M&A, Public Companies and Securities

SEC Proposed Interpretive Guidance for Investment Advisers: Implications for Private Equity


The SEC’s recent proposed guidance for investment advisers has implications for private equity sponsors.  Perhaps the most important part of the guidance for private equity sponsors is that related to the duty of loyalty which addresses conflicts of interest.  By nature the sponsor’s relationship with investors is complex, and inherent... Read More

Topics: Investment Advisers, M&A

SEC Clarifies Need for GAAP Reconciliations for Forecasts Used in Business Combinations


The SEC previously noted in a Compliance and Disclosure Interpretation that financial measures included in forecasts provided to a financial advisor and used in connection with a business combination transaction are not non-GAAP financial measures if: the financial measures are included in forecasts provided to the financial advisor for the... Read More

Topics: M&A, Public Companies and Securities