A recent ruling in the ongoing Lehman Brothers bankruptcy case serves as an important reminder about the risks of deferred compensation.

The ruling, issued by Judge Shelley C. Chapman of the U.S. Bankruptcy Court for the Southern District of New York, involved employee claims for payment of deferred compensation under the Lehman Brothers’ (formerly known as Shearson Lehman Brothers) deferred compensation plan.  The plan provided that employee claims would be subordinate to those of all other present and future creditors of the plan sponsor.

Click here, to read the full alert.

Cleary Gottlieb and PwC’s Governance Insights Center have teamed up to create the Executive Compensation Series, which looks at the factors motivating boards to increasingly engage with shareholders about executive compensation.

The July and April editions can be found here and here, and a list of past editions can be accessed here.

 

Cleary Gottlieb’s “2017 Securities and M&A Litigation Mid-Year Review” discusses major developments so far this year and highlights significant decisions and trends ahead. In the first half of 2017, the U.S. Supreme Court decided securities cases concerning the application of statutes of repose and the five-year statute of limitations for penalties, and granted petitions for certiorari concerning liability under the Exchange Act and the appropriate forum for class actions asserting Securities Act claims. The circuit and district courts also decided significant securities law issues, including the impact of extraterritoriality at the class certification stage. In the context of M&A litigation, plaintiffs continued to file disclosure-only lawsuits in other fora, in response to the Delaware Court of Chancery’s In re Trulia, Inc. Stockholder Litigation decision. Recent decisions by the Delaware courts clarified the application of the business judgment rule to stockholder-approved transactions and the determination of fair value.

Click here, to read the full alert.

On August 1, 2017, the Delaware Supreme Court issued its highly anticipated decision in the appraisal appeal, DFC Global Corp. v. Muirfield Value Partners, L.P.  The Chancery Court’s decision below had garnered substantial attention for its determination that DFC Global’s fair value was approximately 7.5% higher than the deal price, even though the court found a robust and conflict-free sale process.  On appeal from that decision, DFC Global argued that the Delaware Supreme Court should adopt a presumption in appraisal actions that the deal price in arm’s length and competitive mergers equals fair value.  The appeal drew dueling amicus briefs from two groups of prominent professors, one in favor of this presumption,[1] and one opposed to it.[2] Continue Reading Delaware Supreme Court Declines To Establish A Presumption In Favor Of Deal Price In Appraisal Actions—Or Did It?

We were happy to see many of you at our “Blockchain and FinTech Opportunities” conference on Thursday, July 13.

If you were unable to attend or would like to review a recap of the event, key takeaways from the day’s discussions and videos of the panels can be found here.

Please do not hesitate to contact your friends at Cleary Gottlieb regarding any of the matters raised at the conference, and we hope to see you at an event in the near future.

  • The Impact of New Trends in Asset Management and Investor Expectations
  • The Relationship between the CEO and an Activist Director

The keynote presentation at the 2017 Tulane Corporate Law Institute featured a discussion among

  • Gerald Hassell, Chair and CEO of Bank of New York Mellon;
  • Ed Garden, CIO and Founding Partner of Trian Partners; and
  • Ethan Klingsberg, partner in Cleary Gottlieb’s New York office.

The discussion focused on:

  • How new trends in asset management and investor expectations are impacting boards of publicly traded companies – a topic on which the participants had insights in view of Mr. Hassell’s  experience leading not only a publicly traded issuer with engaged investors but also a business that hosts a growing stable of passive-strategy funds as well as actively managed funds, and Mr. Garden’s experience with asset managers and boards through his roles as a high profile shareholder and board member of publicly traded companies on behalf of Trian.  A transcript of this portion of the discussion was published in the new issue of The M&A Journal that is available here; and
  • Bank of New York Mellon’s experience engaging with and managing its relationship with Trian and Mr. Garden – featuring perspectives from both sides of the relationship and offering guidance useful for directors and executives preparing for or in the midst of handling activism.  A transcript of this portion of the discussion was published in the new issue of The M&A Journal that is available here.

The Securities and Exchange Commission (the “SEC”) recently sent a warning to the burgeoning market for initial coin offerings (“ICOs”): assets that exist only on the blockchain may be securities subject to registration, anti-fraud and other requirements under the U.S. federal securities laws.  The outcome of the SEC’s analysis was unsurprising, representing a reasonably straightforward application of longstanding securities law principles.  However, the SEC’s discussion left several key questions and potential paths forward for ICO issuers and other participants in the ICO marketplace to consider. Continue Reading Open Questions and Potential Paths Forward Following the SEC’s Analysis of Digital Assets as Securities

In a decision issued on Friday that will likely slow the recent spike in appraisal suits, the Delaware Court of Chancery held that the fair value of Clearwire Corp. was $2.13 per share—less than half the merger price of $5 per share.  See ACP Master, Ltd. et al. v. Sprint Corp., et al., C.A. No. 8508-VCL (Del. Ch. July 21, 2017) (“Clearwire”).  The decision by Vice Chancellor Laster also found that Sprint Nextel Corp. (“Sprint”), which owned slightly more than 50% of Clearwire’s voting stock at the time of the merger, did not breach its fiduciary duties in acquiring the Clearwire shares it did not already own because the merger was entirely fair to Clearwire’s minority stockholders. Continue Reading Chancery Finds Fair Value To Be Less Than Half Merger Price

On 7 July 2017, the UK Takeover Panel published Practice Statement No 31, which describes the way in which the Panel Executive normally interprets and applies certain aspects of the Takeover Code when a company wishes to seek bidders for itself, typically via an announcement of a formal sale process or a strategic review that may result in a sale. The publication of PS31 indicates that the Executive intends to be more prescriptive about the application of the Code to auctions conducted by the target company. The key rules of the Code affected by PS31 are Rule 2 (secrecy and announcements), Rule 21.2 (deal protection measures) and Rule 21.3 (equality of information between bidders).

Please click here to read the full alert memorandum.