Category: Legal Developments
The United States Department of Justice (DOJ) recently announced a new department-wide Mergers & Acquisitions Safe Harbor Policy that protects acquiring companies that self-disclose criminal misconduct discovered at an acquired company. For acquiring companies that promptly and voluntarily disclose criminal misconduct, fully cooperate in the government’s investigation, and provide timely remediation, restitution, and disgorgement of ill-gotten gains, DOJ will presumptively decline to prosecute. More information is available in this e-update.
Recently the Committee on Foreign Investment in the United States (“CFIUS”, or the “Committee”) announced three changes that impact how the Committee evaluates foreign investments in U.S. businesses. While the changes appear minor, the modifications provide CFIUS with even greater capabilities to ensure protection of U.S. national security. “Springing Rights” are No Longer an Option. Following the passage of the Foreign Investment Risk Review Modernization Act (“FIRRMA”), certain transactions involving TID U.S. businesses[1] that afford foreign investors control or certain...
In January 2023, the Federal Trade Commission (FTC) made three important announcements for M&A practitioners. First, on January 23, the FTC announced the annual adjustment of the thresholds that trigger premerger reporting obligations under the Hart-Scott-Rodino (HSR) Act. The new thresholds will apply to transactions closing thirty days after publication of the announcement in the Federal Register (that is, not earlier than February 24, 2023). Second, the FTC announced the annual adjustment for maximum daily civil penalties for noncompliance with...
The Financial Crimes Enforcement Network (“FinCEN”) issued final regulations in 2022 to implement the revised “beneficial ownership information” disclosure rules for legal entities (the “Final Rule”) under the Corporate Transparency Act (“CTA”), which is part of the comprehensive revisions to U.S. anti-money laundering statutes included in the Defense Appropriations Act of 2021. Specifically, the Final Rule implements Section 6403 of the CTA and requires reporting companies, including a range of U.S. legal entities and non-U.S. legal entities registered to do...
Maintaining international connections, and building new ones, Dorsey attended the recent International Bar Association Annual Conference in Miami. Some of the key themes, from both the hallways and the many seminars and formal events, are published here.
On September 15, 2022, President Biden issued Executive Order 14083 (“EO 14083”) which the White House describes as a “first-ever presidential directive defining additional national security factors for CFIUS to consider in evaluating transactions.” Rumors of its publication have been circulating in Washington, D.C. for months, and for those that follow foreign investment activity in the United States, it is revealing any time the Executive Branch speaks publicly about CFIUS. Click here for a few insights into how EO 14083...
On March 1, 2022, the Delaware Court of Chancery delivered a memorandum opinion ordering a yoga franchisor to complete the acquisition of its franchisee’s chain of yoga studios. The case arose out of the parties’ pre-COVID asset purchase agreement (“APA”) through which the defendant, CorePower Yoga LLC, was set to acquire various yoga studios owned by the plaintiff, Level 4 Yoga, LLC, for nearly $30 million. Level 4 claimed that CorePower breached the parties’ APA in the early months of...
Companies involved in M&A and their deal professionals in China and Hong Kong have been navigating a very changed U.S.- China dynamics for the U.S. outbound M&A market in the last few years. Based on increased barriers to entry, including as a result of greater CFIUS scrutiny, there have been fewer outbound M&A transactions from China into America for the last three years. Instead of investments and acquisitions, deal professionals are seeing divestitures becoming the new trend in the U.S....
In January 2022, the Federal Trade Commission (FTC) made two important announcements for M&A practitioners. First, on January 24, the FTC announced the annual adjustment of the thresholds that trigger premerger reporting obligations under the Hart-Scott-Rodino (HSR) Act. The new thresholds will apply to transactions closing after February 23, 2022. Second, the FTC announced the annual adjustment for maximum daily civil penalties for noncompliance with the HSR Act’s requirements (failure to file, failure to observe the mandatory waiting period, or...
On August 26, the Federal Trade Commission announced a new position on an important factor in determining whether a transaction must be reported under the Hart-Scott-Rodino Act: whether debt repayment at closing counts in determining the value of a transaction. The FTC’s new position is that “the full or partial retirement of debt should be included in calculating the Acquisition Price in any instance where selling shareholder(s) benefit from the retirement of that debt.” An explanation of the FTC’s new...
On August 11th , Dorsey presented a review of corporate, alternative entity, and securities law developments of interest to the M&A practitioner, including the latest Delaware decisions. Watch the presentation by Brian Burke, Amelia Messa, and Jonathon Van Horn here.
Dorsey Assists Alaska Corporations to Hold Annual Virtual and Hybrid Meetings The Alaska Legislature unanimously passed Senate Bill 24, on March 22, 2021, allowing corporate shareholder meetings and nonprofit member meetings to be held via remote communications. The bill was signed into law by Governor Dunleavy on March 31, 2021. “This is a common-sense bill that makes Alaska an easier place to do business, and I expect it to have an immediate and positive impact,” said Alaska Representative Matt Claman....
The FTC and DOJ announced today the temporary suspension of the practice of granting “early termination” of the HSR waiting period. In other words, for the time being, you should assume that any reportable transaction will require the full 30-day waiting period (shorter in all-cash tender offers). This is expected to be a short-duration suspension. See FTC press release here.
On February 2, 2021, the Federal Trade Commission (FTC) announced the annual adjustment of the thresholds that trigger premerger reporting obligations (and the mandatory waiting period) under the Hart-Scott Rodino (HSR) Act. The new thresholds will apply to transactions closing on or after March 4, 2021 (that is, 30 days after publication of the announcement in the Federal Register). This year, for the first time in a decade, the thresholds decreased. Last month, the FTC also announced adjusted thresholds that trigger prohibitions...
2020 is a year we will not soon forget. 2020 was also a year full of dramatic changes for the Committee on Foreign Investment in the United States. The committee’s mandate remained the same — review foreign investments in U.S. businesses to protect national security. When necessary, the president can prohibit a proposed transaction, or require a foreign person to divest their interest in a U.S. business on national security grounds. However, important modifications to the CFIUS process were introduced...
The Paycheck Protection Program (the “PPP”) created under the CARES Act has provided much needed assistance to millions of businesses and other organizations operating in the United States that have been impacted by the COVID-19 pandemic. This program continues to evolve with the latest development addressing situations in which a PPP borrower is participating in a change of control, merger or an acquisition transaction. On October 2, 2020 the Small Business Administration (the “SBA”) published SBA Procedural Notice (5000-20057) (the...
The CARES Act Paycheck Protection Program (“PPP”) has provided much needed assistance to millions of businesses and other organizations impacted by the COVID-19 pandemic in the United States. This program, however, continues to be fraught with snares and traps for the unwary and the M&A space is no exception. To begin, any lender that participates in the PPP is required to utilize a promissory note to evidence each PPP loan it advances. Though the Small Business Administration (SBA) has provided...
The U.S. Citizenship and Immigration Service (“USCIS”) recently announced it has adopted an administrative law decision that clarifies issues relating to the transfer of multinational executives and managers from foreign offices to the United States. This new decision should streamline the immigration aspects of multinational corporate restructurings and mergers. U.S. immigration law provides a special mechanism for multinational companies to sponsor their overseas executives and managers for U.S. permanent residency (“green cards”), provided those employees worked for a foreign entity...
Beginning May 1, 2020, the Committee on Foreign Investment in the United States (“CFIUS”) will require a filing fee in connection with any formal notice of a “covered transaction” or a “covered real estate transaction.” The U.S. Treasury Department made the announcement on April 27, 2020 through an interim rule with its request for public comments until June 1, 2020. (See the interim rule here.) As of the date of this post, CFIUS has set the escalating amount of the...
Earlier we reported that on March 19, 2020 (Effective Collaboration with Governor Nets Pragmatic Solution) the Governor of the State of Alaska temporarily suspended certain provisions of the Alaska Corporations Code AS 10.06.405(a) (in person requirement) and AS 10.06.410(a) (notice requirement) for annual meetings until April 12, or later date, if the disaster declaration is extended. On April 10, 2020, Governor Dunleavy signed into law Senate Bill 241 (the “Act”). The Act extended the Governor’s March 11, 2020 Disaster Declaration...
