Mergers & Acquisitions

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As artificial intelligence (AI) continues to transform the business world, acquirors need to prepare for a deep dive when evaluating companies that use AI to enable their businesses or create proprietary AI. Key considerations for buyers targeting AI-driven companies include understanding how AI is being used, assessing the risks associated with AI creation and use, being mindful of protecting proprietary AI technology, ensuring cybersecurity and data privacy, and complying with the regulatory landscape.Continue Reading M&A Playbook for Acquiring AI-Powered Companies

A recent civil complaint from the U.S. Department of Justice (DOJ) highlights the importance of carefully planning interim operating covenants in M&A deals and structuring the process to prevent buyers from gaining control of targets too soon—before the mandatory waiting period under the Hart-Scott-Rodino Act (HSR Act) is up. This is commonly referred to as “gun-jumping.”Continue Reading DOJ Gun-Jumping Complaint Highlights Importance of Careful Preparation of Interim Operating Covenants to Avoid HSR Act Violations

As general interest and investment in AI has accelerated since the initial public launch of ChatGPT, so too has the U.S. federal government both increased its spending in the area[i] and the speed with which it adopted guidelines on the utilization of AI more generally.[ii] This tracks other actions outside the U.S.,[iii] and anticipates corresponding initiatives at the state and municipal levels.[iv]Continue Reading AI Considerations in Government Contract-Related M&A Transactions

Is your M&A target a company that develops or uses artificial intelligence (“AI”) tools? AI, and generative AI technologies specifically, are powerful business tools but present novel legal issues in the context of M&A transactions. It is increasingly important to identify and understand the unique legal risks associated with the use of AI technologies, tailor your diligence to investigate them and include AI-specific reps and warranties in your deal documents. To effectively do this, it is important to have someone well-versed in AI technology and the associated legal issues on the deal team. Many subtle issues, if not properly understood and addressed, can lead to liability and/or loss of business value. The attached article addresses the expansion of due diligence, beyond standard tech diligence, to include the analysis of AI tools developed or used by the target. It covers some of the key AI-specific legal issues to consider in M&A, but the issues in each transaction will be unique depending on the target company’s involvement with AI. Once you understand the target company’s involvement with AI, it is important to consider the unique legal issues and the diligence needed beyond the standard diligence questions.Continue Reading M&A Transactions: Diligencing AI Issues with Target Companies

In the dynamic and ever-evolving landscape of mergers and acquisitions (“M&A”) and related corporate transactions, Delaware courts continue to play a pivotal role in shaping legal precedents and guiding corporate practices. Delaware cases over the past year have been no exception, with several landmark decisions having significant implications for M&A strategy, governance, and dispute resolution. The summary and analysis of cases below touch upon critical aspects of corporate law as it relates to future M&A transactions. As we delve into these pivotal Delaware M&A cases, we aim to shed light on the key legal principles and takeaways that corporate attorneys, executives, and advisors must understand to navigate the complex terrain of M&A transactions effectively.Continue Reading Delaware M&A Case Law Roundup

On March 28, 2024, the Council of the Corporation Law Section of the Delaware State Bar Association (“DSBA”) issued proposed amendments to the Delaware General Corporation Law (“DGCL”), which, if signed into law, would become effective on August 1, 2024. One of the proposed amendment stems from Crispo v. Musk, C.A. No 2022-0666-KSJM, 2023 WL 7154477 (Del. Ch. Oct. 31, 2023), in which a Twitter stockholder alleged that Elon Musk and related entities breached fiduciaries duties as a controller and violated the Twitter/Musk merger agreement (until Elon Musk decided to close the merger anyway). In this case, the Delaware Court of Chancery addressed the enforceability of “lost-premium damages” provisions, which provides that stockholders can recover lost premium damages when buyer is in breach.Continue Reading Lost-Premium Damages under Merger Agreement – Proposed Amendment to the DGCL in Light of Crispo vs. Musk

In Ap-Fonden v. Activision Blizzard, Inc., C.A. No. 2022-1001-KSJM, 2024 WL 863290 (Del. Ch. Feb. 29, 2024), the Delaware Court of Chancery (McCormick, C.) declined to dismiss a claim alleging that the Board of Directors of defendant Activision Blizzard, Inc. (“Activision”) violated Section 251(b) of the Delaware General Corporation Law (the “DGCL”) by approving a draft merger agreement between Activision and Microsoft, Inc. (“Microsoft”) that was not sufficiently final. The Court held that to comply with Section 251(b), the version of a merger agreement the board must consider and approve need not be “execution ready” but must be “essentially complete.” Practitioners should pay close attention to the Court’s holdings here as it may vary from what some consider customary market practice.Continue Reading Delaware Court of Chancery Puts Practitioners on Notice Regarding Voting Formalities Around Merger Agreements

Hospital mergers have been an increasing trend in the healthcare markets over the past decade, with many proponents of these mergers believing that the overall consolidation of hospital services provides better outcomes for patients at large, and opponents arguing that these mergers only result in increased costs to patients. Over the last couple of years, there has been a slight decrease in the number of hospital mergers, in part due to the whirlwind of changes in society and the economy (i.e., the public health epidemic, increased interest rates and an unstable M&A market), but in large part as a result of drastic changes to the way we receive healthcare services (telehealth and telemedicine, outpatient treatment centers, ambulatory surgery centers, etc.). Although the number of hospital mergers has decreased, the deal size of these transactions has increased exponentially. So what can we expect to see in the future regarding hospital consolidations and what would increased hospital consolidation mean for patients?Continue Reading Hospital Mergers: The Value and Pitfalls

On October 4, 2023, the Department of Justice (DOJ) announced the advent of a new safe harbor for companies that discover wrongdoing by the acquired business in the course of an M&A transaction. Buyers hoping to take advantage of this avenue for leniency would be well-advised to conduct thorough diligence and act quickly to report any wrongdoing they uncover, as the potential upsides for those who do so may be considerable in light of the DOJ’s new policy.Continue Reading DOJ Announces Mergers & Acquisitions Safe Harbor Policy

On June 27, 2023, the FTC and DOJ (together the “Agencies”) announced a notice of proposed rulemaking (“NPRM”) proposing extensive revisions to both the rules that implement the Hart-Scott-Rodino Antitrust Improvements Act (the “Act” or “HSR Act”) and the Premerger Notification and Report Form (the “Form”) that merging parties must submit under the Act. Our previous analysis of the NPRM is covered here.Continue Reading Mergers & Acquisitions Update: A Closer Look at the Impact of the FTC and DOJ’s Proposed HSR Act Filing Reform on Private Equity Firms

Mergers and acquisitions activity is significantly influenced by economic conditions. Factors such as gross domestic product growth, interest rates and market volatility create an undeniable influence on deal volume. When economic circumstances are favorable, it can seem easy to close transactions. Conversely, when the economy faces headwinds, buyers are more cautious and often kick more tires before initiating closing wires.Continue Reading Pillars of Due Diligence