Martin Lipton Memos (2017)

  • Martin Lipton, Memos (2017)

 米国の組織再編法制の実務に影響を与え,また,近年では,企業統治の分野でも影響力を発揮している,Wachtell Lipton Rosen & Katzの弁護士であるMartin Lipton氏のメモランダムを集めたものです。Lipton氏のメモランダムは,教科書や論文などで引用されることがあるのですが,古いものについては原文を入手することが困難なことが多かったように思います。

 私は,ニューヨーク大学でWachtell Liptonの弁護士(David A. Katz氏とMark Gordon氏)による企業買収の講義を受講し,そこで幾つかのメモランダムが配られてから,Lipton氏のメモランダムを興味深く拝見してきました。本ブログでも,Lipton氏のメモランダムについて,度々言及しています。しかし,Lipton氏の執筆に係るメモランダムをすべて拝見したということではありませんでした。例えば,1988年11月3日の “The Interco Case” と題するメモランダムは,このPDFを見つけるまで拝見することができませんでした。このメモランダムは,Jeffrey N. Gordon, Corporations, Markets, and Courts, 91 Colum. L. Rev. 1931, 1959 n.95 (1991),Mark J. Roe, Delaware’s Competition, 117 Harv. L. Rev. 588, 626 (2003)などの論文で引用されています。今回,このメモランダムも含めて,Lipton氏の様々なメモランダムを読むことができるということで,紹介をいたします。デラウェア州会社法の歴史の実務の側面を垣間見ることができました。

Fernan Restrepo, Judicial Deference, Procedural Protections, and Deal Outcomes in Freezeout Transactions: Evidence from the Effect of MFW

This work next explores the effect of MFW on the gains of the target shareholders, as measured by the premium over market prices, the cumulative abnormal returns around the announcement of the transaction, and the change from the buyer’s first offer to the final offer. This part of the analysis considers two hypotheses. The first hypothesis predicts that the gains of the target should be higher after MFW because shareholder voting acts as a check against negligent or captured boards, and even if boards discharged appropriately their fiduciary duties, the target shareholders can still use the threat of a veto to push acquirers to raise their offer (Subramanian, 2005, 15; Edelman and Thomas, 2015, 468; Jiang, Li, and Mei, 2016). As a result, the fact that MFW effectively incentivized MOM conditions should lead to an upward pressure on deal prices. The second hypothesis suggests, in contrast, that the target gains should remain similar after MFW because freezoeuts were already subject to significant scrutiny before 2013, and judicial scrutiny appears to be an effective substitute for procedural protections (Subramanian, 2007; Restrepo, 2013; Restrepo and Subramanian, 2015). As discussed in Section 4, the results generally support this hypothesis.

Yair Listokin & Inho Andrew Mun, Rethinking Corporate Law During a Financial Crisis, Harvard Business Law Review (forthcoming)

Since the Financial Crisis of 2008, most reform measures and discussions have asked how the law of financial regulation could be improved to prevent or mitigate future crises. These discussions give short shrift to the role played by corporate law during the Financial Crisis of 2008 and in other financial crises. One critical regulatory tool during the Crisis was “regulation by deal,” in which healthy financial firms (“acquirers”) would hastily acquire failing firms (“targets”) to mitigate the crisis. The deals were governed by corporate law, so corporate law played an outsize role in the response to the Crisis. But few observers have asked how corporate law — in addition to financial regulation — should govern dealmaking in financial crises. To fill in this gap, this Article focuses on the role played by corporate law during the Financial Crisis, and asks whether corporate law should be different during a financial crisis than in ordinary times. Using an externality framework — the failure of large financial firms harms the entire economy, and not just the shareholders of the failed firm — this Article identifies a key problem with the current corporate law regime as applied in financial crises: the shareholder value maximization principle as applied to failing target companies. This principle, manifested in the form of shareholder voting rights on mergers and board fiduciary duties to shareholders, is inapplicable to systemically important target firms whose failure would have enormous negative externalities on the rest of the economy. This Article contends that corporate law as applied to systemically important and failing target firms during crises should change as follows: (1) replace shareholder merger voting rights with appraisal rights, and (2) alter fiduciary duties so that directors and officers of those failing target firms consider the interests of the broader economy.

WSJ, T. Boone Pickens Calls It Quits on Energy Trading

T. Boone Pickens, a famous oilman and investment manager, said he is closing the energy-focused hedge fund he has run for the last two decades as his health declines.

See also David A. Vise, Delaware Court Changes Rules of Takeover Game, Wash. Post, June 16, 1985

Morris James, Where Is Delaware Corporate Litigation Going?

To begin with, it is clearly a good thing for Delaware to reject disclosure-only settlements when little value has been generated for the stockholders. Trulia is a good decision given the current legal landscape. Under it, clearly meritorious disclosure settlements still will be approved. Other cases can proceed on the merits to a pre-close injunction hearing, and may be resolved through voluntary supplemental disclosures that can benefit stockholders, or through post-close litigation where damages may be pursued. Moreover, Corwin will not affect post-close litigation where the challenged transaction is among the most scrutinized under Delaware law: deals involving a conflicted, controlling stockholder. Nor will Corwin affect post-close litigation in third-party deals where the stockholder vote was uninformed, or coerced. E.g., In re Saba Software, Inc. S’holder Litig., Cons. C.A. No. 10697-VCS (Del. Ch. Mar. 31, 2017).

Antitakeover Statutes: Nevada Considers Rejecting Revlon & Unocal

As introduced, SB 203 includes the following statements of legislative intent:

Except in the limited circumstances set forth in NRS 78.139, an exercise of the respective powers of directors or officers of a domestic corporation, including, without limitation, in circumstances involving a change or potential change in control of a corporation, is not subject to a heightened standard of review.

The standards promulgated by the Supreme Court of Delaware in Unocal Corporation v. Mesa Petroleum Co., 493 A.2d 946 (Del. 1985), and Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1986), and their progeny have been, and are hereby, rejected by the Legislature.

via DealLawyers