The Office of New York State Attorney General Letitia James (“NYAG”) has filed a lawsuit to shut down technology company Coinseed. The state has accused the firm of selling unregistered securities in the form of digital tokens and operating as an unregistered broker-dealer while making material misrepresentations about the company, its management team, and fees charged to investors in connection with cryptocurrency trades. Continue Reading
Delaware Court of Chancery Holds that a Contractual Delaware Choice of Law Provision Did Not Waive Plaintiff’s Claim Under the California Securities Act
Posted in Courts and ADRIn Swipe Acquisition Corp. v. Krauss, CA No. 2019-0509-PAF, 2021 WL 282642 (Del. Ch. Jan. 28, 2021), the Delaware Court of Chancery held that California public policy prohibited a purported waiver of a contractual party’s right to assert a claim under the California Securities Act by reason of a Delaware choice of law provision in the parties’ stock purchase agreement. Delaware courts will not enforce a choice of law provision if it would be contrary to a fundamental policy of the state whose law would apply but for the choice of law provision (here, California). California law prohibits contractual waivers of the California Securities Act unless the party seeking to enforce the waiver can show that it will not diminish the plaintiff’s statutory rights under California law. The Court held that because the plaintiff could not assert a claim under the Delaware Securities Act (due to a lack of nexus with Delaware), and none of the plaintiff’s other claims would provide the same as or greater rights than its California Securities Act claim, enforcing the choice of law provision would be contrary to California’s public policy. Swipe Acquisition thus further defines the contours of a party’s ability to waive its rights under the California Securities Act by way of a choice of law provision. Continue Reading
M&A Pre-Flight Check: Avoiding Common Issues in Aerospace & Defense Acquisitions
Posted in Mergers & AcquisitionsAs anyone who follows the industry can tell you, mergers and acquisitions activity in the aerospace and defense industry has remained robust over the past decade. In 2019 alone, there were 460 corporate acquisitions in this sector. And while a slowdown in 2020 deal activity is certainly expected as a result of the COVID-19 pandemic, results for at least the second quarter remained strong, with 84 deal closings. Further, analysts project that activity in certain subsegments of the industry, including defense, space technology and cyber security, will remain vigorous for the foreseeable future, at least partially offsetting any declines in commercial aerospace transactions. Continue Reading
Top 10 Diligence Issues in Lead Generation Mergers and Acquisitions
Posted in Mergers & AcquisitionsAs anyone who has been through a corporate sale process can tell you, there is no such thing as a “standard” M&A transaction. Every deal is different and presents a unique set of challenges. This is especially true of transactions involving lead generation companies, which can be very different than businesses in other industries. Amongst other differences, companies in this space utilize a wide variety of customized commercial arrangements and are subject to numerous industry-specific regulatory requirements that buyers need to be aware of before making an investment in this space. In this article, we highlight the top 10 issues that buyer should diligence when considering acquiring a lead generation company. Sellers in this space should focus on eliminating any issues in these areas as well to make them a more attractive acquisition target. Continue Reading
New Interim Final Rules Re: PPP Loan Forgiveness Requirements and Review Procedures as Amended by Economic Aid Act
Posted in CoronavirusOn January 19, 2021, the U.S. Small Business Administration (SBA) published its 28th Interim Final Rule (Forgiveness IFR) covering the loan forgiveness requirements and review procedures for the Paycheck Protection Program, as reauthorized and amended by the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (the Economic Aid Act), and as enacted under the Coronavirus Aid, Relief, and Economic Security Act (as amended, supplemented or otherwise modified from time to time prior to the enactment of the Economic Aid Act, including the Paycheck Protection Program and Health Care Enhancement Act, the Paycheck Protection Program Flexibility Act, applicable federal regulations and interpretive guidance issued by the SBA and U.S. Department of Treasury (the CARES Act)). Continue Reading
Lower Filing Thresholds for HSR Act Premerger Notifications and Interlocking Directorates Announced
Posted in Mergers & Acquisitions- Lower Thresholds For HSR Filings
On February 1st, 2021, the Federal Trade Commission announced revised, lower thresholds for premerger filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The filing thresholds are revised annually, based on the change in Gross National Product (GNP) and had not been lowered since 2010. Continue Reading
Paycheck Protection Program: SBA Issues Guidance on First Draw and Second Draw PPP Loans and Releases PPP Applications Pursuant to the Economic Aid Act
Posted in CoronavirusOn January 6, 2020, the SBA published its 26th Interim Final Rule (the First Draw PPP IFR) and 27th Interim Final Rule (the Second Draw PPP IFR)[1] with respect to the Paycheck Protection Program (PPP), as reauthorized and modified under Title III (cited as the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (the Economic Aid Act)) of Division N of the Consolidated Appropriations Act, 2021. The PPP was originally enacted under the Coronavirus Aid, Relief, and Economic Security Act (as amended, supplemented or otherwise modified from time to time prior to the enactment of the Economic Aid Act, including by the Paycheck Protection Program and Health Care Enhancement Act, the Paycheck Protection Program Flexibility Act, applicable federal regulations and interpretive guidance issued by the SBA and Treasury, the CARES Act). Continue Reading
The Save Our Stages Act – Time for Eligible Businesses to Get Ready for Their Audition (Part 2 of 2)
Posted in CoronavirusThis client alert is the second of a two part series concerning the Save Our Stages Act (the “SOS Act”), which became law on December 27, 2020 as Section 324 of the Economic Aid to Hard-Hit Small Business, Nonprofits, and Venues Act (the “Economic Aid Act”, comprising Title III of Division N of the Consolidated Appropriations Act, 2021). The SOS Act establishes a new grant program (the “SOS Program”, also known as the “grant program for shuttered venue operators”) to be administered by the Small Business Administration (“SBA”) to aid certain financially distressed venue operators, event promoters or producers, and talent representatives. Continue Reading
The Save Our Stages Act – Time for Eligible Businesses to Get Ready for Their Audition (Part 1 of 2)
Posted in CoronavirusAmong the various bills that were amalgamated in the Consolidated Appropriations Act, 2021 (the omnibus appropriations and stimulus funding bill that was signed into law on December 27, 2020) was a modified version of the Save Our Stages Act (the “SOS Act”), a bill first introduced into the Senate by Sen. John Cornyn (TX) on July 22, 2020. The SOS Act can be found in Section 324 of the Economic Aid to Hard-Hit Small Business, Nonprofits, and Venues Act, which act comprises Title III of Division N of the Consolidated Appropriations Act, 2021. The SOS Act establishes a new grant program (the “SOS Program”, also known as the “grant program for shuttered venue operators”) to be administered by the Small Business Administration (“SBA”) to aid certain financially distressed venue operators, event promoters or producers, and talent representatives. Continue Reading
UPDATED: The Reauthorization and Revival of the Paycheck Protection Program and Economic Injury Disaster Loan Program under the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act
Posted in Coronavirus[Update: This article has been updated since its initial publication on December 31, 2020.]
On December 27, 2020, President Donald Trump signed into law the Consolidated Appropriations Act, 2021 (the 2021 Consolidated Appropriations Act), an omnibus statute that is comprised of, among other laws, twelve fiscal year 2021 appropriations bills for the federal government and an economic aid package to assist business concerns that continue to face hardships due to the COIVD-19 pandemic. Title III of the 2021 Consolidated Appropriations Act, which is cited as the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (the Act), among other matters, reauthorizes and modifies the Paycheck Protection Program (PPP) and Economic Injury Disaster Loan program (EIDL), as enacted under the Coronavirus Aid, Relief, and Economic Security Act (as amended, supplemented or otherwise modified from time to time prior to the enactment of the Act, including the Paycheck Protection Program and Health Care Enhancement Act, the Paycheck Protection Program Flexibility Act, applicable federal regulations and interpretive guidance issued by the SBA and Treasury (the CARES Act)). Continue Reading
