In a recent opinion addressing breaches of fiduciary duties and disclosure violations in connection with a take-private of Mindbody, Inc. by Vista Equity Partners, the Delaware Court of Chancery reinforced the significance (to both buyers and sellers) of avoiding conflicts in a sell-side process and ensuring all material facts are disclosed to the target’s board and stockholders. The Mindbody opinion, while addressing unusual facts, serves as a helpful guide for buyers in take-private transactions.

Please click here to read the full alert memorandum.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

With the various global crises, budget spending to address inflation and post-COVID-19 pandemic effects continuing to weigh on fiscal budgets globally, governments will at some point soon need to recoup lost revenue.

As regards the EU, there are a large number of current and upcoming legal developments that will significantly change the tax landscape and need to be monitored.

Most notably, in mid-December 2022, the EU Member States agreed on the EU Directive implementing Pillar 2 on the 15% effective minimum corporate tax rate that will need to be transposed into national laws by December 31, 2023. During 2023, expect further focus related to discussions on Pillar 1 (the digital nexus or, alternatively, digital services taxes), DEBRA (Debt-equity bias reduction allowance), Unshell (ATAD 3), SAFE (Securing the activity framework of enablers) and BEFIT (Business in Europe: Framework for Income Taxation).

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For a PDF of the full memorandum, please click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

Last year we noted that U.S. antitrust enforcement was in a period of nearly unprecedented public attention and policy debate, and also that the Biden Administration seemed likely to launch significant new policy initiatives as the year progressed. 

And so it was — 2022 saw substantial shifts in announced U.S. antitrust policy, political and legislative hubbub over antitrust law and bold public statements from the Administration’s antitrust enforcers.  What 2022 did not see, however, was a matching surge in actual enforcement.  Instead, by most measures, U.S. enforcement levels remained comparable to the two prior administrations, and U.S. enforcers suffered unprecedented setbacks in court.  Similarly, while sweeping legislation was proposed, the only bills to actually become law were technical changes adjusting merger filing fees and venue over antitrust claims by state Attorneys General.

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For a PDF of the full memorandum, please click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

This past year’s Russia-Ukraine conflict sparked a significant transformation of the global economic sanctions landscape, with developments and lessons extending well beyond Russia. 

In 2023, boards of directors should continue to monitor Russia-related sanctions across multiple jurisdictions, be aware of the implications of sanctions developments for the energy sector and consider planning for sanctions and export control contingencies, particularly relating to China.

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For a PDF of the full memorandum, please click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

In a recent survey of almost 2,800 global organizations, one in five respondents reported experiencing a ransomware attack in 2021—with almost half of those respondents suffering significant operational impacts as a result.

This past year proved to be no better, as a steady stream of governments, businesses and individuals alike became victims of high-profile cyber-attacks in 2022.  Still, despite the frequency, sophistication and severity of these attacks, available data suggests that only about half of U.S. companies even have a cybersecurity response plan in place—and many are not financially prepared should a material cyber-attack occur. As new rules, guidance and initiatives on cyber-related issues continue to emerge, boards should pay particular attention to the demands of cybersecurity oversight and the significant risks posed by cyberattacks, especially as regulators and private litigants continue to bring large numbers of cybersecurity-related actions in response to data breaches.

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For a PDF of the full memorandum, please click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

As the value of data continues to increase exponentially, so too do the associated risks, including risk of cyberattacks, data breaches or data-related litigation, as well as rising regulation throughout the world designed to restrict the exploitation of these assets. 

This tension between an organization’s desire to maximize the benefits derived from data collection versus mounting exploitation risks will only continue to grow in 2023.  For example, according to the International Association of Privacy Professionals, in the absence of a federal standard in the U.S., state-level momentum for comprehensive privacy bills was at an all-time high in 2022, with 29 states and the District of Columbia either introducing data privacy bills or carrying them over from last year’s sessions, and two states successfully passing comprehensive privacy legislation as discussed below.  Similarly, in Europe, new proposals for regulations designed to address data usage have started to proliferate as policymakers moved from deliberation to action.

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For a PDF of the full memorandum, please click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

In the United States, the Inflation Reduction Act of 2022 (IRA) was passed in August. 

The IRA will be of relevance to many U.S. taxpayers, with three particular areas of focus for large corporations: the new corporate alternative minimum tax (CAMT), a new 1% excise tax imposed on certain net stock redemptions and repurchases, and tax credit provisions relating to renewable energy.

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For a PDF of the full memorandum, please click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

The Department of Labor has been busy with various regulatory initiatives during 2022 and this trend is likely to continue into 2023.

This high-level overview of a couple of noteworthy DOL regulatory initiatives should be useful for boards and management teams alike.  The first  is a proposed amendment to a popular “prohibited transaction” exemption, which, if passed, will have a significant impact on many financial contracts, including existing loan and ISDA contracts.  The second is a final regulation governing ERISA plan investments, which could alter how plan investors consider ESG as part of their investment strategy and manage their investments in public companies.

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For a PDF of the full memorandum, please click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

2022 has been a pivotal year for sustainability policy worldwide.  In the EU, where sustainability regulation enjoys broad popular and institutional support, sustainability policy shifted from theory to action.

The European Commission has now defined the detailed contours of its sustainability framework – through the Taxonomy Regulation (TR), Sustainable Finance Disclosure Regulation (SFDR), Corporate Sustainability Reporting Directive (CSRD) and Corporate Sustainability Due Diligence Directive (CS3D) – and laid out the related disclosure templates and other implementing rules.  Regulators will now shift their attention to supervision and enforcement.  We briefly outline below the developments that will most affect companies that do business in the EU in 2023 – distinguishing between implementation challenges and possible future developments.

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For a PDF of the full memorandum, please click here.