We were glad to see over 150 of you in San Francisco for the lively discussions on “Antitrust, IP, Board Processes, and M&A in 2016: Challenges and Conundrums for the West Coast” among senior personnel from law firms, in-house legal departments, financial advisory firms, proxy solicitors, shareholder engagement advisors, public relations firms, the Delaware Court of Chancery, the Federal Trade Commission, the U.S. Department of Justice, the Federal Circuit and District Courts, the Silicon Valley U.S. Patent and Trademark Office, the media, and the University of California, Berkeley School of Law and the Berkeley Center for Law, Business and the Economy, the event’s co-sponsor with Cleary Gottlieb.

Don’t hesitate to contact any of your friends at Cleary Gottlieb to follow up on any of the matters raised at the conference.

TCB-Cleary

Please Join Us

Tuesday, February 16, 2016
12:00 p.m. (EST)

Governance Watch Webcast:
International Trends in Corporate Governance

This month’s Governance Watch live webcast, hosted by Cleary Gottlieb and The Conference Board, will be held on Tuesday, February 16, at 12:00 p.m., and will focus on international corporate governance trends and best practices.  Our expert panelists will provide a range of perspectives in advance of the global 2016 annual meeting season, and address international trends focusing on shareholder rights, developing high-performing boards, contested shareholder meetings and activist investor strategies, as well as shareholder activity around environment and social issues.  We hope you can join us for this timely and important discussion on international governance trends and best practices.

Panelists include:

David Jackson, Company Secretary, BP p.l.c.

Daniel Summerfield, Co-head of Responsible Investment, USS Investment Management
Nicolas Grabar and Sung K. Kang, Partners at Cleary Gottlieb

Sophie L’Helias, Founder and President of LeaderXXchange™, and Senior Fellow, The Conference Board Governance Center (Moderator)

For questions please contact RSVP@cgsh.com.

It is well known that specified employees of publicly-traded companies must wait at least six months following a separation from service to receive payments of deferred compensation triggered by such separation.  The six-month delay requirement must be set forth in the plan establishing the right to the payment of deferred compensation on or before the date the applicable individual first becomes a specified employee.  Failure to do so, either as a matter of documentary or operational compliance, could result in the imposition of draconian penalty taxes and interest charges on the service provider under Section 409A of the Internal Revenue Code of 1986 (the “Code”). Continue Reading Section 409A and the Six Month Delay – Don’t Forget Your Directors

The EU has been on an accelerated transition towards a more climate-friendly energy sector since 2009.  EU Member States are committed to decrease CO2 emissions by 20% by 2020, and to increase generation from Renewable Energy Sources (“RES”) to mandatory targets.  After implementation of the Paris Agreement, these targets will likely be revised upwards, given the EU’s initial commitment for a 40% reduction of CO2 emissions by 2030.  Strong demand for clean energy, government support including subsidies and tax incentives, and governmental mandates create attractive opportunities for investment in RES generation and the transmission infrastructure needed to bring clean energy to users. Continue Reading Investing in Energy in the EU – Navigating the Ownership Unbundling Rules

The Oregon Supreme Court, overturning a lower court ruling, has enforced a Delaware exclusive forum bylaw.  The case, Roberts v TriQuint Semiconductor, Inc., is notable for its clear approach to the choice of law issues raised in this type of challenge and supports the increasingly common practice of public company targets adopting exclusive forum bylaws when entering into mergers agreements. Continue Reading Oregon Supreme Court Enforces Delaware Exclusive Forum Bylaw Adopted on a Cloudy Day

After several years that seemed defined by turmoil and uncertainty, 2015 delivered some unexpected and much-needed clarity for corporate directors on issues such as proxy access, compensation disclosure, investor expectations regarding board composition, certain director and financial advisor conflicts of interest, and audit committee processes and related disclosure. The past year also saw corporations adopting a less alarmist and more measured approach toward potential shareholder activism. The task of the director, however, will remain a challenging one in 2016. Much of the welcome guidance received during 2015 remains to be implemented, shareholders and regulators will continue to actively and closely monitor boards, and new complexities will undoubtedly arise. This memorandum discusses issues that we believe will require the attention of boards of directors and management in 2016.

Please click here to read the full alert memorandum.

Joining a rising chorus of criticism of “disclosure settlements” in merger class actions, Chancellor Bouchard (in In re Trulia, Inc. Stockholder Litigation) rejected a proposed settlement of a stockholder class action challenging Zillow, Inc.’s acquisition of Trulia, Inc. in a stock-for-stock merger that closed in February 2015.  After defendants agreed to moot plaintiffs’ disclosure claims by supplementing their disclosures before the stockholder vote, the proposed settlement would have resulted in a fee to plaintiffs’ counsel and broad releases for defendants, but no economic benefit to the stockholder class.  Although not the first to express distaste for such settlements and the incentives they create, the Chancellor’s Opinion is notable for its comprehensive discussion of their problems and firm proposals to avoid such problems going forward, including a clear message that the Court will no longer hesitate to reject disclosure settlements involving supplemental disclosures of dubious value and overbroad releases, even if unopposed. Continue Reading Chancery Court Rejects Disclosure-Only Settlement, Suggests in Future Such Settlements Will Be Approved Only in Narrow Circumstances

Companies in the mining and oil and gas industries are increasingly subject to requirements to disclose the payments they make to governments.  In December 2015, the U.S. Securities and Exchange Commission published its proposed rule on the disclosure of “resource extraction payments,” implementing a directive of the Dodd-Frank Act of 2010.  The Commission, under pressure from a court ruling, is now moving fast on this topic and will probably adopt a final rule later this year.  This memorandum takes a detailed look at the proposal and how it compares to similar regimes around the world, as well as a prior version of the rule that was vacated by a federal court in 2013.

Please click here to read the full alert memorandum.

Acquisition agreements in private M&A transactions frequently contain language that purports to limit the purchaser’s recourse against the seller for extra-contractual misrepresentations, even if fraudulent, in order to allocate among the parties the risk of potential post-closing losses.  Such limitations on liability are generally enforceable under Delaware law when they have been specifically negotiated between sophisticated parties,[1] and are commonly implemented through a combination of a so-called “entire agreement” integration clause and an “exclusive representation” provision.  Delaware case law had previously suggested that such provisions might need to contain specific language to serve as an effective disclaimer, but the Delaware Court of Chancery recently ruled, in the context of a motion to dismiss, in Prairie Capital III, LP v. Double E Holding Corp. (Del. Ch. Nov. 25, 2015), that no “magic words” are required so long as the parties’ intention is unambiguous. Continue Reading Disclaimers of Extra-Contractual Liability in Delaware Following Prairie Capital III, LP v. Double E Holding Corp.

Cleary Gottlieb’s Mergers and Acquisitions group was selected by Law360 as one of its Practice Groups of the Year, citing the record-breaking $160 billion merger agreement with Allergan PLC and Pfizer Inc. as “the sort of high-profile transaction that Cleary Gottlieb thrives on.”

In its profile of Cleary’s M&A group, Law360 points out that “lawyers within the international firm’s 16 offices work collaboratively to provide the indispensable guidance their M&A clients have come to count on.”

To view the full article, please click here.

Cleary also earned Practice Group of the Year recognition for Banking, Capital Markets and Competition.