Cleary Gottlieb Steen & Hamilton LLP announced today that it has elected eight partners and eight counsel, effective January 1, 2017.

The elections will bring the firm’s total worldwide partners to 195 and counsel to 57.

“I am proud to introduce our new global partners and counsel,” said Mark Leddy, Cleary Gottlieb’s Managing Partner.  “This exceptional group of individuals embodies Cleary Gottlieb’s commitment to internationalism and reflects the high caliber of talent we have developed globally and across practice areas.  Our new partners and counsel, collectively, speak Cantonese, Dutch, English, French, German, Italian, Korean, Mandarin, and Spanish.  I congratulate these lawyers on their dedication to legal excellence, and to delivering the highest-quality service to our clients around the world.”

The new partners and counsel are resident in the firm’s Brussels, Hong Kong, London, New York, Rome, and Washington offices.  Their broad spectrum of practice areas includes antitrust, banking and financial institutions, capital markets, intellectual property, leveraged and acquisition finance, litigation, mergers and acquisitions, private equity, private funds, real estate, and restructuring.

To learn more about the new partners and counsel, click here.

Appraisal rights in public M&A transactions have recently garnered greater attention, particularly in Delaware.  As a result, more attention is being paid to the possible inclusion of a closing condition protecting the acquiror against excessive use of appraisal rights, and this should lead to careful attention being paid to the negotiation and drafting of any such conditions and related provisions.  Discussed below are some of the reasons for this greater attention, and suggestions regarding negotiating and drafting such provisions. Continue Reading Negotiating Appraisal Conditions in Public M&A Transactions

Part 2:  Risks Associated with Transfers of Personal Data and Post-Closing Integration

One aspect of mergers and acquisitions that is receiving growing attention is the relevance of privacy issues[1] under U.S. and European Union (“EU”) laws as well as the laws of a growing number of other jurisdictions.[2]  This two-part blog post discusses the principal M&A-related privacy risks and highlights certain “traps” that are often overlooked.  In Part 1, we discussed risks associated with a target’s pre-closing privacy-related liabilities and considered ways to mitigate these risks through adequate diligence and privacy-related representations in M&A agreements.  In this Part 2, we discuss the risks associated with transferring or disclosing personally-identifiable information (“personal data”) of an M&A target (or a seller) to a purchaser (or prospective purchaser) and those associated with the purchaser’s post-acquisition use of such personal data.

Continue Reading Privacy in M&A Transactions: Navigating the Traps, Part 2

Part 1: Risks Associated with the Target’s Pre-Closing Privacy-Related Liabilities

One aspect of mergers and acquisitions that is receiving growing attention is the relevance of privacy issues[1] under U.S. and European Union (“EU”) laws as well as the laws of a growing number of other jurisdictions.[2]  This two-part blog post discusses the principal M&A-related privacy risks and highlights certain “traps” that are often overlooked.  In this Part 1 of the post, we discuss risks associated with a target’s pre-closing privacy-related liabilities and consider ways to mitigate these risks through adequate diligence and representations in M&A agreements.  In Part 2, we will discuss the risks associated with transferring or disclosing personally-identifiable information (“personal data”) of an M&A target (or a seller) to a purchaser (or prospective purchaser) and those associated with the purchaser’s post-acquisition use of such personal data.

Continue Reading Privacy in M&A Transactions: Navigating the Traps

In recent years, when pursuing corporations and their officers for violations of the U.S. securities laws, the Securities and Exchange Commission (“SEC”) Division of Enforcement has increasingly brought its claims to the SEC’s in-house administrative law judges (ALJs) rather than the federal civil courts.  In fact, last year, over 90% of the SEC’s actions against public companies were brought to the SEC’s ALJs—whereas five years ago, only 33% of those cases were brought as ALJ proceedings.  The credit for this remarkable increase in ALJ proceedings belongs in large part to the 2010 Dodd–Frank Act,[1] which expanded the ALJs’ jurisdiction and authorized new penalties that ALJs could impose, making it unnecessary for the SEC to bring many claims in civil courts.

Continue Reading Changes and Challenges in the SEC’s ALJ Proceedings

In a recent decision[1], Vice Chancellor Laster of the Delaware Court of Chancery clarified certain issues related to the obligations of a controlling stockholder that often arise in connection with going private and similar transactions.  The case involved a relatively conventional proposal by a controlling stockholder (the Anderson family) to acquire the remaining shares of Books-A-Million, Inc. (“BAM”) from BAM’s minority stockholders.  The family structured the proposal with the goal of satisfying the conditions of the MFW decision so that any challenge to the transaction would benefit from the favorable “business judgment” level of judicial review.[2] Continue Reading Delaware Chancery Applies MFW to Dismiss Challenge to Going Private Transaction and Clarifies Obligations of Controlling Stockholders

A recent opinion from the Delaware Court of Chancery reaffirmed the importance of bringing disclosure claims before closing (when steps can still be taken to achieve an informed stockholder vote), and the difficult hurdles faced by a plaintiff pursuing disclosure claims after closing. Continue Reading Delaware Court of Chancery Reaffirms That Disclosure Claims Should Be Brought Before Closing

As the Delaware Supreme Court narrows the avenues for post-closing challenges to mergers (see our discussions of the implications of the Corwin and Cornerstone decisions here, here, here and here), we expect that plaintiffs’ lawyers will increasingly seek to base their merger suits on specific allegations of conflicts that may have tainted the oversight of processes to sell companies in hopes of supporting claims for breaches of the duty of loyalty and the applicability of the enhanced scrutiny of the entire fairness doctrine.  Given that virtually every merger includes some special merger benefits for directors that may be susceptible to an attempt at such a claim, it is timely that the Delaware Court of Chancery issued a decision over the summer of 2016 that provides useful guidance on how to evaluate the most common of special merger benefits to insiders:  protection against exposure to pre-merger claims. Continue Reading When Do Merger Benefits to Directors Constitute Disabling Conflicts?

As discussed in prior posts, recent applications of the Delaware Supreme Court’s decision in Corwin v. KKR Financial Holdings, 125 A.3d 304 (Del. 2015) have emphasized the high bar for surviving a motion to dismiss in damages actions by stockholder plaintiffs after completion of a merger transaction, as “dismissal is typically the result” where informed, disinterested stockholder approval requires application of the business judgment rule to extinguish all claims except for waste.  See Singh v. Attenborough, 137 A.3d 151, 152 (Del. 2016).  Two recent Chancery Court decisions have further underscored the claim-extinguishing effect of informed, disinterested stockholder approval. Continue Reading Recent Applications of <em>Corwin v. KKR Financial Holdings LLC</em> Confirm High Bar to Pleading Post-Closing Damages Actions

Since our last blog post on the changing landscape of disclosure-only settlements in the Delaware Court of Chancery, there have been developments in several areas, including the continued lower filing rates for shareholder litigation in Delaware, the adoption of the Trulia “plainly material” standard for supplemental disclosures by the Seventh Circuit, and the lower standard for disclosures required in order for plaintiffs’ lawyers to be awarded a fee in the mootness context.  Continue Reading Update About Disclosure-Only Settlements in M&A Litigation