If the Second Circuit concludes that, after Kelly, confidential government information does not constitute property, the Court could reverse the convictions on this ground while leaving unaddressed its prior holding that there is no personal benefit requirement in Title 18 insider trader cases. As the petitioners warned the Supreme Court, prosecutors in this scenario would likely treat this silence as a green light to continue to charge insider-trading crimes where there is little to no evidence of a personal benefit to the tipper, or tippee knowledge of that benefit. Of course, under such circumstances, prosecutors would not have the benefit of Blaszczak to rely on, and thus there could be litigation risk to the government depending on the facts of the particular case.
- Gibson Dunn & Crutcher LLP, Issues and Best Practices in Drafting Drag-Along Provisions
- Gibson Dunn & Crutcher LLP, Planning for Your Annual Shareholder Meeting: Selected Considerations for a Virtual-Only Meeting
(Nov. 16, 2016)
- Gibson Dunn & Crutcher, Shareholder Nominates First Proxy Access Nominee
In what appears to be the first use of a company’s proxy access bylaw, GAMCO Asset Management filed today a Schedule 13D/A (available here ) and a Schedule 14N (available here ) announcing that it has used the proxy access bylaw at National Fuel Gas (NFG) to nominate a director candidate for election at NFG’s 2017 Annual Meeting. According to the 13D/A, GAMCO and its affiliates beneficially own in the aggregate approximately 7.81% of NFG’s Common Stock and yesterday delivered a letter to NFG nominating Lance A. Bakrow to the Board of Directors.
Gibson, Dunn & Crutcher LLP writes:
We reviewed 38 Delaware public M&A deals announced after the Court’s decision in City of Providence.  In 17 of the 38 acquisitions, the target announced that it had adopted exclusive forum bylaws at the same time it announced the deal. Targets had adopted exclusive forum bylaws prior to the deal in an additional 10 acquisitions.
Our research indicates that Delaware targets involved in public M&A transactions had exclusive forum bylaws in place in over 70% of recent transactions. If a Delaware target did not have exclusive forum bylaws in place prior to the public announcement of a transaction, it adopted such bylaws at the time of such announcement over 60% of the time.