On April 4, 2024, the Delaware Supreme Court issued its decision on a stockholder suit challenging the fairness of IAC/InterActiveCorp’s separation from its controlled subsidiary, Match Group, Inc.[1]  In this decision, the Delaware Supreme Court provided clarity and guidance on two important issues involving the application of the MFW framework. First, the MFW framework, which provides a path for a conflict transaction to be reviewed under the more deferential business judgment rule, applies to all controlling stockholder transactions in which the controller receives a non-ratable benefi ..read more

In a February 28, 2024 opinion, the Delaware Court of Chancery confirmed an arbitrator’s award resulting in a seller of a $40 million company unexpectedly having to pay a buyer over twice that amount – $87 million – in a customary post-closing purchase price adjustment. The adjustment seems to have resulted from an ambiguity in the purchase agreement involving a drafting technicality in the definition of “Closing Date Indebtedness” and seller and buyer taking a different view of the pre- and post-closing accounting treatment of indebtedness of a joint venture in which the target company held a ..read more

Please click here for the latest edition of the Cleary Gottlieb M&A Telegram for Germany ..read more

With a stroke of the pen, the Delaware Court of Chancery invalidated commonplace provisions in scores of stockholder agreements relating to public corporations and likely many more relating to private corporations.  In West Palm Beach Firefighters’ Pension Fund v. Moelis & Company (“Moelis”)[1], Vice Chancellor J. Travis Laster, struck down an entire package of stockholder veto rights and held that provisions in a stockholder agreement purporting to restrict the size of the board of directors, requiring the board to recommend in favor of a stockholder nominee, requiring the board to f ..read more

The Financial Reporting Council (FRC) has published an updated UK Corporate Governance Code (the Code), most of which will take effect from 1 January 2025. These revisions will replace the current version of the Code published in 2018.  As foreshadowed in its November 2023 statement, the FRC has taken forward only a small number of changes, with the final product falling far short of the Sarbanes-Oxley style compliance originally outlined in its May 2023 consultation. The published changes to the Code are targeted and minimal, aimed at striking a balance between enhancing transparency and ..read more

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024” Impact of “Pillar Two” Global Minimum Taxation The push for global tax reform will continue to have a significant impact on large multinational groups in 2024. Since broad international consensus was reached through the Organisation for Economic Co-operation and Development (OECD) in 2021 on the principles of a “two-pillar solution” to tax challenges arising from the digitalization of the world economy, many of the countries that support the plan (of which t ..read more

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”. Continuing global trends to protect consumer privacy and rein in the exploitation of personal data by organizations, 2023 saw an explosion of comprehensive privacy laws, amendments to existing laws and a proliferation of targeted regulations around the world.  In the U.S., given the federal government’s continued inability to enact a comprehensive federal privacy law, several U.S. states followed the path first paved by California and enacted comprehen ..read more

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”. In 2024, boards of directors face a well-established, complex and active global foreign direct investment (FDI) landscape in which transactions will regularly trigger multijurisdictional FDI filing and approval processes.  This is the case not only with respect to well-known FDI review regimes such as the Committee on Foreign Investment in the United States (CFIUS), but also with newly established, modified, and/or expanded non-U.S. FDI review regimes ..read more

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”. Though perhaps not top of the agenda for boards of directors in 2023, there have been significant developments in two unrelated but important areas that boards should be mindful of heading into 2024—the increasing efforts to eliminate (or at least weaken) employee non-competition restrictions and regulatory developments in the ERISA pension plan fiduciary space. Non-Competes 2023 saw a surge in significant developments restricting non-compete agreements and ..read more

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”. Antitrust in 2023 was marked by a series of policy developments—some still nascent, some ripe for enforcement for the first time.  In the U.S., the FTC and DOJ finalized their drastically transformed merger guidelines.  In the EU, landmark new digital regulations became applicable for the first time.  And the UK government introduced a bill promising major new digital and consumer protection rules.  Regulators may be getting new tools, b ..read more