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Insight on M&A, litigation, and corporate governance in the US

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Mergers and acquisitions

The firm you need when it matters most.

As an M&A leader, we handle the largest and most complex domestic and cross-border transactions.

Our teams in New York, Silicon Valley and Washington, DC advise companies, their boards and special committees on a broad range of matters, including public and private M&A, carve-outs, spin-offs, split-offs, joint ventures and strategic alliances. We also advise on private equity and venture capital investments.

We work hand-in-glove with a fully integrated, highly-regarded group of transaction specialists to deliver sophisticated advice on complex matters, comprising antitrust, CFIUS, IP/data, compensation and benefits, tax, finance and M&A litigation disciplines. Our multidisciplinary group has deep experience advising on sensitive matters involving hostile M&A, takeover defense, shareholder activism and other efforts for corporate control, allowing us to proactively and successfully mitigate situations involving active shareholders. 

Our US M&A team is an integral part of our global M&A practice, which consistently ranks among the top five firms for global M&A. By tapping into our network of 29 offices around the world with six “Band 1” rankings (including across M&A antitrust and tax), we are well-prepared to help service our clients wherever their businesses take them.

Client successes

Related capabilities

  • Carve-outs
  • Corporate governance
  • Equity capital markets
  • General corporate
  • Joint ventures
  • Listed companies
  • Market abuse
  • Private equity and other financial investors
  • Private M&A
  • Public M&A
  • Reorganizations
  • Special purpose acquisition companies (SPACs)

2023 Annual Letter to Boards

Leading the Way: Navigating Volatile Markets and Macroeconomic Forces

Our latest blogs

Proposed Changes to CFIUS Regulations Continue Its Shift Towards a More Enforcement-Focused Mission

On 11 April 2024, the U.S. Department of the Treasury (“Treasury”), in its capacity as chair of the Committee on Foreign Investment in the United States (“CFIUS”), published a Notice of Proposed…

Author(s): Aimen Mir, Colin Costello, Christine Laciak

  • cfius
  • compliance
  • foreign investment

FCPA Enforcement Outlook and Latest Compliance Guidance

Over the past year, the Foreign Corrupt Practices Act (FCPA) has remained an important fixture in the enforcement and compliance landscape for global companies. In 2023, the Department of Justice…

Author(s): Daniel Cendan, Justin Simeone, Grace Brody

  • misconduct
  • whistleblowing
  • corporate crime
  • investigations
  • us

Comparison of SEC Final Rules on Climate-Related Disclosures against Other Climate-Related Disclosure Regimes

On March 6, 2024, the Securities and Exchange Commission (the “SEC”) finalized its long-awaited climate-related disclosures rules (the “Final Rules”), which set forth what climate-related information…

Author(s): Elizabeth Bieber, Juliane Hilf, Vanessa Jakovich, Teresa Ko, Pamela Marcogliese, Sascha Arnold, Sam Houshower, Marlen Vesper-Gräske, Charlotte Aspin, Ian Good, Heather Kellam, Zo Khalid, Prince Kudolo, Jordan Phelan

  • capital markets and securities
  • corporate governance

With The Fintech Sector's Return to Explosive Growth, Here Are Top U.S. Legal Issues to Watch

Freshfields recently hosted a U.S. Fintech Hot Topics Webinar to highlight on-the-ground insights from our Antitrust and Competition, Data Privacy and Security, Financial Services Regulatory, and…

Author(s): Jamillia Ferris, Vinita Kailasanath, Christine Lyon, Jan Rybnicek, David Sewell, Nathaniel Balk, Christine Chong, Sora Park, Emily Strickland

  • antitrust and competition
  • cybersecurity
  • data protection
  • financial regulatory
  • m&a

FDIC Joins Bank Merger Fray with Proposed Policy Statement

With the recent one-year anniversary of three of the largest bank failures in U.S. history—shortly preceded by the largest bank merger announcement in recent years—bank merger policy has firmly…

Author(s): David Sewell, Alison Hashmall, Justin Stewart-Teitelbaum, Jenny Hochenberg, Angela Landry, Nathaniel Balk, Tina Laritz, Cates Saleeby

  • antitrust and competition
  • compliance
  • corporate
  • financial institutions
  • financial regulatory
  • m&a

UPDATE: SEC Stays Final Rules on Climate-Related Disclosures

On Friday, March 15, 2024, the United States Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) stayed the Securities and Exchange Commission’s (“SEC”) final rules on climate-related…

Author(s): Pamela Marcogliese, Elizabeth Bieber, Zo Khalid, Heather Kellam, Jordan Phelan

  • capital markets and securities
  • corporate
  • corporate governance

New Executive Order Targets Foreign Access to Bulk Sensitive Personal Data and Government-Related Data

What is the headline? On February 28, 2024, the Biden administration released Executive Order (EO) 14117 and an Advance Notice of Proposed Rulemaking (ANPRM) that ultimately would: (1) prohibit or…

Author(s): Brock Dahl, Aimen Mir, Christine Lyon, Timothy Howard, Brian Reissaus, Andrew Gabel, Christine Chong

  • cfius
  • cybersecurity
  • data protection
  • foreign investment

SEC Adopts Final Rules on Climate-Related Disclosures

On March 6, 2024, the Securities and Exchange Commission (the “SEC”) adopted its long anticipated rules, amending Regulations S-K and S-X to set forth the climate-related information that companies…

Author(s): Pamela Marcogliese, Elizabeth Bieber, Zo Khalid, Heather Kellam, Jordan Phelan

  • capital markets and securities
  • corporate
  • corporate governance

FTC Hosts Workshop on Private Equity in Healthcare

On March 5, 2024, the U.S. Federal Trade Commission (“FTC”) hosted a workshop “aimed at examining the role of private equity (“PE”) investment in healthcare markets.”  During the workshop, the FTC…

Author(s): Jamillia Ferris, Meghan Rissmiller, Jan Rybnicek, Sam Fulliton, Hattie Van Metre

  • antitrust and competition
  • private equity

Kroger/Albertsons: The FTC’s First Challenge Under the 2023 Merger Guidelines

On February 26, 2024, the Federal Trade Commission (FTC) filed a lawsuit to block The Kroger Company’s proposed acquisition of Albertsons Companies, Inc. for $24.6 billion. The challenge marks the…

Author(s): Justin Stewart-Teitelbaum, Angela Landry, Gabriella Small

  • antitrust and competition
  • m&a

New Chancery Decision Highlights Need for Care in Crafting Shareholder Arrangements with Delaware Corporations

A new 133-page opinion by the Delaware Court of Chancery highlights risks to the enforceability of agreements between Delaware corporations and one or more shareholders where the agreements focus on…

Author(s): Ethan Klingsberg, Meredith Kotler, Victor Ma

  • corporate governance
  • delaware law
  • litigation
  • m&a

2024 Proxy Advisor Guidelines: What Companies Need to Know Heading into the 2024 Proxy Season

The two most influential proxy advisor firms, Institutional Shareholder Services (ISS) and Glass Lewis & Co. (Glass Lewis), updated their annual voting policies for annual shareholder meetings in…

Author(s): Elizabeth Bieber, Sarah Ghulamhussain, Peter Liddle

  • corporate governance
  • executive compensation
  • cybersecurity
  • employment

Sears and (the Limited Scope of) Controlling Stockholder Fiduciary Duties

The recent post-trial opinion by the Delaware Court of Chancery in In re Sears Hometown and Outlet Stores, Inc. Stockholder Litigation[1]puts controlling stockholders on notice that they must be…

Author(s): Ethan Klingsberg, Meredith Kotler, Victor Ma

  • corporate
  • delaware law
  • litigation

9 Key Takeaways from the SEC’s New SPAC Rules

On January 24, 2024, the SEC issued a 581-page release which adopted new rules to govern SPAC IPOs and de-SPAC business combinations.  To a large extent the new rules were adopted as proposed, but…

Author(s): Michael Levitt, Valerie Ford Jacob, Sebastian Fain

  • capital markets and securities
  • corporate
  • corporate governance

Takeaways from the Cross-Border M&A Roundtable Hosted by The American College of Governance Counsel and Les Club des Juristes

The roundtable on “New Developments in Cross-Border M&A” hosted recently by the American College of Governance Counsel and Les Club des Juristes conveyed a series of actionable insights.  The…

Author(s): Carol Lee, Ruth Levy

  • m&a
  • corporate governance
  • corporate

2024 J.P. Morgan Healthcare Conference Highlights

The 42nd Annual J.P. Morgan Healthcare Conference brought together thousands of professionals in the biopharma, biotech and MedTech spaces to discuss the latest industry developments and forge new…

Author(s): Adam Golden, Vinita Kailasanath, Kristen Riemenschneider, Sora Park, Dylan O'Connor, Shannon O'Hara

  • m&a

M&A Predictions and Guidance for 2024

1. Cross-Border M&A – The era of migration transactions comes into full bloom. Many companies listed outside the US would trade today at higher multiples to earnings and other applicable metrics if…

Author(s): Ethan Klingsberg

  • m&a
  • private capital
  • antitrust and competition

Preparing for the Risks Ahead: From Geopolitical Instability to Congressional Gridlock and Investigations

The beginning of the year is a good time to examine and prepare for business and legal risks companies will be facing this year.  The past year brought a range of unexpected events: Hamas’s attack on…

Author(s): Beth George, Andrew Dockham, Sean Quinn

  • cybersecurity
  • data protection
  • corporate governance
  • sanctions and trade

Legislation Does NOT Extend the Application of Section 16 to Foreign Private Issuers and Their Insiders

The final version of the National Defense Authorization Act for Fiscal Year 2024 does not include the changes to Section 16 proposed by the Senate and described in our original October 2, 2023 post.…

Author(s): Pamela Marcogliese, Elizabeth Bieber, Taryn Zucker, Elizabeth Fleming, Cates Saleeby

  • capital markets and securities
  • corporate
  • corporate governance

U.S. Antitrust Agencies Issue Final 2023 Merger Guidelines

On December 18, 2023, the Federal Trade Commission (“FTC”) and the Department of Justice (“DOJ”) issued the final version of the 2023 Merger Guidelines (the “Guidelines”).  The Guidelines are not…

Author(s): Jamillia Ferris, Meghan Rissmiller, Jan Rybnicek, Matthew McDonald, Sam Fulliton

  • antitrust and competition
  • litigation
  • m&a

California Adopts “Climate Accountability Package”

California's new "Climate Accountability Package" is set to expedite the timeline for U.S., and possibly global, emissions and climate-related financial risk reporting. This acceleration surpasses…

Author(s): Elizabeth Bieber, Juliane Hilf, Vanessa Jakovich, Teresa Ko, Pamela Marcogliese, Sascha Arnold, Sam Houshower, Marlen Vesper-Gräske, Charlotte Aspin, Ian Good, Prince Kudolo

  • corporate governance
  • esg

Changing Seasons: SEC's SolarWinds Complaint Demonstrates Regulator's Aggressive Enforcement on Cybersecurity

Introduction Recently, the Securities and Exchange Commission (“SEC”) filed a complaint in the Southern District of New York against the SolarWinds Corporation, a network and infrastructure…

Author(s): Brock Dahl, Timothy Howard, Pamela Marcogliese, Elizabeth Bieber, Beth George, Mark Appleton

  • corporate governance
  • litigation
  • cybersecurity

M&A Earnout Provisions: Recent Trends in US Law and How to Draft Your Clause to Avoid Disputes

What was old is new again: earnout litigation is once again on the rise. Earnout clauses are an increasingly common feature of M&A deals (one recent study found that the use of earnouts in U.S.…

Author(s): Linda Martin, Oliver Board, Maria Slobodchikova, Christian Vandergeest, Kaitie Holland

  • litigation
  • m&a
  • corporate governance
  • capital markets and securities

US Appeals Court Upholds Nasdaq Board Diversity Rule … For Now

On Wednesday, the United States Court of Appeals for the Fifth Circuit upheld Nasdaq’s board diversity rule, which encourages greater board diversity from companies listed on the exchange, in…

Author(s): Sarah Solum, Pamela Marcogliese, Elizabeth Bieber, Taryn Zucker, Kimberly Wang

  • capital markets and securities
  • litigation

Pending Legislation May Extend the Application of Section 16 to Foreign Private Issuers and Their Insiders

An update has since been posted and can be found at this link. For decades, Foreign Private Issuers (“FPIs”) and their insiders have been exempt from the reporting requirements of Section 16…

Author(s): Elizabeth Bieber, Nicole Foster, Lori Goodman, Taryn Zucker, Ethan Magid, Regina Erie, Elizabeth Fleming, Ariana Negron

  • capital markets and securities
  • corporate
  • executive compensation

Government Shutdown & the SEC – Practical Advice for Public Companies

With a government shutdown looming, the Division of Corporation Finance of the SEC has updated its guidance outlining the “extremely limited” functions it will perform in the event of a shutdown.…

Author(s): Sarah Solum, Pamela Marcogliese, Taryn Zucker, Heather Kellam

  • capital markets and securities
  • corporate governance
  • corporate

Private Equity in the Antitrust Spotlight

On September 21, the Federal Trade Commission (“FTC”) filed a suit against a private equity firm and one of its portfolio companies, challenging what the FTC dubbed a “roll-up” strategy targeted at…

Author(s): Angela Landry, Emily Strickland

  • antitrust and competition
  • m&a
  • private equity

The Second Circuit Affirms District Court Decision in Kirschner That Syndicated Loans Are Not Securities

Update: On February 20, 2024, the United States Supreme Court denied the Trustee’s petition for a writ of certiorari, which was filed on December 19, 2023.  The Supreme Court’s decision leaves in…

Author(s): Linda Martin, Allison Liff, H.T. Flanagan, Peter Linken

  • capital markets and securities
  • private credit and capital solutions

M&A Buyers Beware: Trend in Delaware Merits Heightened Attention by Acquirors

A trio of recent, high-profile M&A cases in the Delaware Court of Chancery merit special attention by M&A acquirors.  In each of these cases, the Court highlighted the liability of the third-party…

Author(s): Ethan Klingsberg, Victor Ma

  • m&a
  • delaware law

President Biden Issues Outbound Investment Restrictions Executive Order – Small Yard, High Fence?

On Wednesday, August 9, 2023, President Biden issued Executive Order 14105, Addressing United States Investments in Certain National Security Technologies and Products in Countries of Concern (the…

Author(s): Aimen Mir, Christine Laciak, Colin Costello, Timothy Swartz, Mark Appleton

  • cfius
  • national security
  • m&a
  • private equity
  • venture capital
  • foreign investment

CFIUS 2022 Annual Report – Rough Seas Ahead for Investors

The Committee on Foreign Investment in the United States (“CFIUS”) has released its annual report for calendar year 2022.  Although a difficult macroeconomic landscape led to a sharp decline in…

Author(s): Aimen Mir, Christine Laciak, Colin Costello, Ahmad Al Dajani

  • cfius
  • foreign investment

SEC Adopts Cybersecurity Disclosure Rule

On July 26, 2023, the Securities and Exchange Commission adopted new rules and amendments that enhance and standardize cybersecurity disclosure requirements for registrants and foreign private…

Author(s): Brock Dahl, Timothy Howard, Pamela Marcogliese, Beth George, Seve Kale

  • cybersecurity
  • corporate governance

SEC Declines to Take Position on Whether Syndicated Loans are “Securities”—Second Circuit Now Poised to Decide the Issue

In a closely watched case that has the potential to upend the estimated $2.5 trillion syndicated loan market, the Securities and Exchange Commission has declined to submit an amicus brief—following a…

Author(s): Linda Martin, Allison Liff, H.T. Flanagan, Peter Linken, Justin Lin

  • capital markets and securities
  • private credit and capital solutions

Proposed New U.S. Merger Guidelines: Making Old Ideas New Again

The U.S. Department of Justice Antitrust Division (“DOJ”) and Federal Trade Commission (“FTC”) yesterday released a draft of revised Merger Guidelines (“draft Guidelines”) that detail the agencies’…

Author(s): Bruce McCulloch, Andrew Ewalt, Jamillia Ferris, Mary Lehner, Jennifer Mellott, Meghan Rissmiller, Jan Rybnicek, Justin Stewart-Teitelbaum, Laura Onken, Timothy Swartz

  • regulatory
  • m&a
  • antitrust and competition
  • litigation

Return of the CVR

The recent surge in bolt-on M&A in the life sciences sector is being fueled by the use of contingent value rights.   Notwithstanding favorable conditions, 2022 was a challenging year for M&A in the…

Author(s): Adam Golden, Mark Appleton

  • life sciences
  • corporate
  • finance
  • m&a

SEC Issues Three C&DIs Addressing the Rule 10b5-1 Amendments

On May 25, 2023, the staff of the SEC’s Division of Corporate Finance (the “Staff”) released three new compliance and disclosure interpretations (“C&DIs”) relating to the SEC’s recent amendments to…

Author(s): Pamela Marcogliese, Elizabeth Bieber, Jeremy Barr, Taryn Zucker, Zo Khalid, Jennifer Burrow

  • disclosure
  • sec
  • compliance
  • corporate governance
  • corporate

Key Takeaways from the 21st Annual Biomed Israel Conference

The 21st annual Biomed Israel Conference, attended by thousands of industry leaders from 45 countries, presented a juxtaposition of challenges and opportunities in the life sciences sector. There was…

Author(s): Ben Cohen

  • life sciences
  • regulation
  • antitrust and competition
  • corporate
  • finance
  • m&a

2023 ACC Life Sciences Conference: Structuring Considerations for Biotechs

The Association of Corporate Counsel hosted its annual Life Sciences Conference from May 9-11, 2023, which featured presentations from a variety of law firms and life sciences industry experts on…

Author(s): Jeff Jay, Jake Silvers

  • life sciences
  • corporate
  • m&a
  • finance

If You Buy, Tell Us Why (and When, and How): SEC Adopts New Share Repurchase Disclosure Requirements

The crackdown on stock buybacks continues. On May 3, 2023, the Securities and Exchange Commission (SEC) adopted final amendments to rules under the Securities Exchange Act of 1934, as amended (the…

Author(s): Pamela Marcogliese, Elizabeth Bieber, Jeremy Barr, Taryn Zucker, Shira Oyserman, Daniel Fox, Lauren Lee

  • foreign private issuer
  • sec
  • corporate
  • corporate governance
  • finance

SEC Issues Interpretive Guidance on Tender Offers

The Staff of SEC’s Division of Corporation Finance (the “Staff”) recently issued a series of Compliance and Disclosure Interpretations (“C&DIs”) related to tender offers, that provide useful guidance…

Author(s): Jeremy Barr, Michael Lam

  • corporate
  • corporate governance
  • finance
  • m&a

When Do We Say What On Pay?

It’s that time again. For companies that are required to hold advisory shareholder “say-on-pay” votes on their executive compensation, SEC rules impose another easy-to-forget requirement: the…

Author(s): Pamela Marcogliese, Elizabeth Bieber, Daniel Fox, Zhanqi Xu

  • capital markets and securities
  • corporate
  • corporate governance
  • m&a
  • executive compensation

Protecting Assets and Guarding Against Counterparty Risk

Below are a number of actions[1] that your company may wish to consider to better protect its assets in the event of insolvency of a bank or other financial institution, including (1) maintaining…

Author(s): Brian Rance, Jerome Ranawake

  • capital markets and securities
  • finance
  • venture capital
  • financial institutions
  • corporate

You’ve been warned – FTC’s first merger closing statement in over three years sends a reminder to companies that antitrust is only one consideration

In a rare move on February 27, 2023, the Federal Trade Commission (FTC) issued its first statement akin to a closing statement since 2019. The FTC’s statement was, however, lukewarm. Its focus was…

Author(s): Christine Lyon, Jamillia Ferris, Meghan Rissmiller, Rod Carlton, Daniel Wylde, Rikki Haria

  • antitrust and competition
  • m&a

Recent Legal Developments Relating to Compensation Clawbacks

Executive Summary Executive clawbacks have been the subject of significant recent rule- and policy-making activity, by the U.S. Securities and Exchange Commission (the SEC), the stock exchanges, and…

Author(s): Lori Goodman, Nicole Foster, Brandon Gantus, Jennifer Loeb, Sonia Bennett

  • sec
  • nyse
  • nasdaq
  • executive compensation
  • capital markets and securities

Bridging Valuation Gaps in Public M&A in the Pharma, Biotech, and Other Life Sciences Industries

Acquisitions of public companies in pharma, biotech, and other life sciences industries are increasingly using deal structures designed to bridge valuation gaps between buyers and target companies.…

Author(s): Jenny Hochenberg, Adam Golden

  • pharma
  • biotech
  • life sciences
  • corporate
  • corporate governance
  • m&a

SEC Commissioner Crenshaw Suggests Potential Reforms to Regulation D

In the Alan B. Levenson Keynote speech this week at the 50th anniversary Securities Regulation Institute (“SRI”), SEC Commissioner Caroline A. Crenshaw suggested a number of potential reforms to…

Author(s): Sarah Solum, Pamela Marcogliese, Scott Blumenkranz, Shira Oyserman, Jennifer Burrow

  • sri
  • regd
  • securities
  • capital markets and securities
  • corporate
  • corporate governance

The Drug Pricing Landscape in 2023: Renewed Pressure for Pricing Reform

For over a decade, industry watchdogs, patient groups and various lawmakers have been calling for drug pricing reform—initially with little success. 2023, however, may be the year in which supporters…

Author(s): Adam Golden, Tanny Kang, Emily Parfitt, Kristen Riemenschneider

  • m&a

2022 De-SPAC Debrief

We're pleased to announce Freshfields' 2022 De-SPAC Debrief: A comprehensive review of all 102 de-SPAC transactions that closed in 2022. 2022, a challenging year for SPACs, was also the 2nd biggest…

Author(s): Michael Levitt, Valerie Ford Jacob, Sebastian Fain

  • spacs
  • de-spacs
  • capital markets and securities
  • m&a

Historic FCC action banning technologies from certain Chinese companies signals continuing U.S. targeting of market-leading Chinese technologies

Over a year ago, Congress passed the Secure Equipment Act of 2021, mandating that the Federal Communications Commission (“FCC”) block the authorization of network licenses from Chinese companies…

Author(s): Aimen Mir, Nabeel Yousef, Brock Dahl, Colin Costello, Donna Faye Imadi

  • cfius

Freshfields partner and co-head of US Corporate and M&A Ethan Klingsberg talks M&A and capital markets in 2023 with Bloomberg TV

Partner and co-head of US Corporate and M&A Ethan Klingsberg recently appeared on Bloomberg TV during "Bloomberg Markets: Americas" to discuss what clients need to know about M&A and capital markets…

Author(s): Ethan Klingsberg

  • corporate
  • m&a
  • shareholder activism
  • finance
  • financial institutions
  • capital markets and securities

Push It To The Limit: The US Merger Agencies Before the Courts in 2022

2022 has been a busy year for the US antitrust agencies, with a number of litigated cases bringing their heightened enforcement policies into sharp relief. These developments in the Biden…

Author(s): Jamillia Ferris, Meghan Rissmiller, Tom Morgan, Lauren Vaca

  • antitrust and competition
  • m&a

DOJ Adds Section 1 Claim in M&A Context

On June 29, the Department of Justice’s Antitrust Division (DOJ) challenged Booz Allen Hamilton’s (Booz Allen’s) $440 million dollar acquisition of EverWatch, alleging that, as the only two viable…

Author(s): Justin Stewart-Teitelbaum, Angela Landry, Kara Reid, Donna Faye Imadi

  • antitrust and competition
  • m&a

At Axon Oral Argument, Supreme Court Weighs Whether to Open FTC to More Attacks

On Monday, November 7, 2022, two opposite trends collided at the Supreme Court oral argument in Axon Enterprise, Inc. v. Federal Trade Commission.  In recent years, leaders at the Federal Trade…

Author(s): Andrew Ewalt, LB McCaskey

  • antitrust and competition
  • m&a

SEC Adopts Final Clawback Rules for Incentive-Based Compensation

­­Executive Summary On October 26, 2022, the U.S. Securities and Exchange Commission (the SEC) adopted final executive compensation “clawback” rules (the Final Rules), fulfilling its mandate under…

Author(s): Nicole Foster, Brandon Gantus, Sarah Ghulamhussain

  • corporate
  • corporate governance

Antitrust Scrutiny Intensifies for Private Equity

Led by antitrust officials in the US appointed by President Biden, authorities around the world have turned a critical eye towards private equity (PE), making PE the latest target in the global trend…

Author(s): Jan Rybnicek, Meytal McCoy, Alastair Chapman, Paul van den Berg, Laurent Bougard, Felix Roscam Abbing

  • antitrust and competition
  • private equity

A Sweet Deal: US Sugar’s Acquisition of Imperial Sugar Allowed to Close

Over the last year, the US antitrust agencies’ new leadership has announced a series of policy reforms to advance the Biden Administration’s ambitious enforcement agenda. In the merger control…

Author(s): Julie Elmer, Justin Stewart-Teitelbaum, Angela Landry, Eva Roney

  • antitrust and competition
  • m&a

SEC Adopts JOBS Act Inflation Adjustments: Increases Revenue Threshold at which Reporting Companies Lose EGC Status to $1.235 Billion

On September 9, 2022, the Securities and Exchange Commission (the “SEC”) adopted inflation adjustments mandated by the Jumpstart Our Business Startups Act (“JOBS Act”). As a result, an “emerging…

Author(s): Jeremy Barr, Elizabeth Bieber, Isaac Ellman

  • corporate governance
  • corporate
  • m&a

The DOJ Is Locked onto Heightened Antitrust Enforcement: ASSA Abloy / Spectrum Brands

On September 15, the US Department of Justice’s Antitrust Division (DOJ) filed an antitrust lawsuit to block ASSA ABLOY AB’s (ASSA ABLOY) proposed $4.3 billion acquisition of Spectrum Brands…

Author(s): Justin Stewart-Teitelbaum, Angela Landry, Eva Roney

  • antitrust and competition
  • m&a

New CFIUS Executive Order Reflects Evolved CFIUS National Security Risk Analysis

On 15 September 2022, President Biden signed Executive Order 14083 (Executive Order on Ensuring Robust Consideration of Evolving National Security Risks by CFIUS) directing CFIUS to take certain…

Author(s): Aimen Mir, Christine Laciak, Colin Costello, Timothy Swartz

  • cfius

Acquiring a De-SPACed Company – Key M&A Considerations

This article originally appeared in the ABA Business Law Today on September 12, 2022. The SPAC IPO Market and the De-SPAC Market Have Slowed Dramatically During 2022. By all measures, 2022 has not…

Author(s): Jenny Hochenberg, Brayden Koslowsky

  • corporate
  • de-spac
  • spacs
  • m&a
  • capital markets and securities

Maybe Entire Fairness Review Isn’t So Bad After All: Lessons from BGC Partners and Other Recent Controlling Shareholder Transactions

Eight years ago, the Delaware Supreme Court in Kahn v. M&F Worldwide Corp. (“MFW”),[1] affirmed then-Chancellor Strine’s decision holding that the business judgment rule could apply to controlling…

Author(s): Meredith Kotler, Ethan Klingsberg, Marques Tracy

  • delaware law
  • litigation
  • corporate
  • finance

New Stock Buyback Tax Raises Questions as to Application and Practical Effect

On August 16, 2022, President Biden signed the Inflation Reduction Act of 2022 (the “IRA”) into law. Although far from the sweeping tax reform that the Biden Administration had originally envisioned,…

Author(s): Joe Soltis, Claude Stansbury, Robert Scarborough, Sarah Solum, Daniel Fox

  • tax
  • capital markets and securities

New Amendment to DGCL Merits Amending Charters of Delaware Corporations and Engagement in Advance with Institutional Shareholders

Amendments to the charters of Delaware corporations are advisable as a result of a new amendment, effective August 1, 2022, to the Delaware General Corporation Law (the DGCL) that permits the…

Author(s): Ethan Klingsberg, Oliver Board

  • corporate
  • corporate governance
  • delaware law
  • m&a

Supreme Court’s West Virginia v. EPA decision casts a shadow over SEC’s proposed climate-related disclosure rule

The U.S. Supreme Court’s 6-3 decision in West Virginia v. EPA may call into question whether the U.S. Securities and Exchange Commission (“SEC”) has the legal authority to adopt and enforce its…

Author(s): Taryn Zucker, Lauren Lee, Evelyne Kim

  • litigation
  • corporate
  • corporate governance
  • capital markets and securities
  • sec
  • m&a

Trends and Updates from the 2022 Proxy Season

The extraordinary 2022 proxy season comprised significant developments in governance, environmental and sustainability issues, shareholder engagement, investor considerations, and activism matters.…

Author(s): Elizabeth Bieber, Pamela Marcogliese, Sarah Ghulamhussain

  • corporate governance
  • capital markets and securities
  • corporate
  • executive compensation

Milestone Payments In Life Sciences M&A And Licensing Transactions

This article originally appeared in Life Science Leader on July 1, 2022. As has now become an annual tradition, when the calendar turned to 2022, several commentators — including Freshfields, in our…

Author(s): Adam Golden, Jeff Jay

  • life sciences
  • licensing and collaborations
  • licensing
  • m&a

Freshfields Sends Comments to SEC on SPAC / De-SPAC Rulemaking Proposal

Freshfields Bruckhaus Deringer US LLP has provided  a comment letter to the Securities & Exchange Commission with respect to the SEC’s proposed rulemaking regarding special purpose acquisition…

Author(s): Michael Levitt, Jeremy Barr, Brian Lewis

  • corporate
  • corporate governance
  • de-spac
  • capital markets and securities
  • sec
  • spacs
  • m&a

8th Annual Berkeley Spring Forum on M&A and the Boardroom

Thank you to the over 200 in-person and several hundred virtual attendees at the 8th Annual Berkeley Spring Forum on M&A and the Boardroom hosted by Ethan Klingsberg of Freshfields and Professor…

Author(s): Ethan Klingsberg

  • united states
  • corporate governance
  • delaware law
  • venture capital
  • corporate
  • capital markets and securities
  • cfius
  • m&a
  • private equity
  • antitrust and competition

Mind the Gaps: Lessons from the Goldstein Opinion on Why a Target Company’s Approach to Board Minutes Can Make All the Difference in M&A Litigation

Vice Chancellor Laster’s recent opinion in Goldstein v. Denner provides a useful reminder of the importance of documenting board meetings, updates, and communications in formal corporate board…

Author(s): Ethan Klingsberg, Meredith Kotler, Victor Ma

  • m&a
  • litigation
  • corporate governance
  • delaware law

SEC Remains Focused on Auditor Independence, Cautioning Against “Checklist Compliance” Mentality

On June 8, 2022, Paul Munter, the SEC’s Acting Chief Accountant, issued a statement (the “statement”) emphasizing the importance of the auditor independence framework under Rule 2-01(b) of Regulation…

Author(s): Taryn Zucker, Fatima Anjum

  • corporate
  • capital markets and securities
  • corporate governance

Pressure Builds to Resolve Lack of Access to Audit Papers of Chinese Listed Companies

On May 24, 2022 YJ Fischer, the director of the U.S. Securities and Exchange Commission Office of International Affairs, gave a speech on recent regulatory developments related to the continued…

Author(s): Michael Levitt, Jeremy Barr, Isaac Ellman

  • corporate
  • corporate governance
  • capital markets and securities
  • financial institutions
  • sanctions and trade

The Other Shoe Drops: California Court Invalidates Statute Requiring Women on Corporate Boards, Eliminating All Board Diversity Requirements

Background On September 30, 2018, Senate Bill 826 (SB 826) was signed into law in California, which required publicly held corporations with principal executive offices located in California to have…

Author(s): Elizabeth Bieber, Jennifer Burrow, Evelyne Kim

  • corporate
  • corporate governance
  • shareholder activism
  • capital markets and securities

Equity Lines of Credit Increasingly Being Used to Enhance Company Liquidity

U.S. public companies seeking additional liquidity are increasingly looking to raise capital through equity lines of credit.  Under an equity line of credit, a publicly listed company contracts with…

Author(s): Michael Levitt, Valerie Ford Jacob, Jennifer Burrow

  • capital markets and securities
  • corporate
  • financial institutions

Freshfields Partners Not Alarmed By Slump In SPAC Deals

The following article was originally published by Law360 on April 22, 2022. Click here to view. Although SPAC mergers and IPOs are at their lowest levels since the onset of the pandemic, special…

Author(s): Michael Levitt, Sebastian Fain

  • m&a
  • capital markets and securities
  • spacs

Will Litigation in U.S. Courts Be the Price of Doing Business in the United States?

Background Imagine a corporation registers to do business in a U.S. state. It is not incorporated there. Its headquarters isn’t there. It has perhaps only opened an office there. If that were your…

Author(s): Timothy Harkness, Linda Martin, David Livshiz, Scott Eisman, Carla Yoon

  • litigation
  • corporate

Could the Specter of March-In Rights Finally Impact Drug Pricing Reform?

On March 24, 2022 a group of public interest organizations filed a petition urging the Department of Health and Human Services (“HHS”) to use its “march-in” authority to lower the price of several…

Author(s): Kristen Riemenschneider, Joshua Samuel

  • life science
  • ip transactions
  • covid-19
  • corporate

SEC Issues Proposing Release to Remove References to Credit Ratings from Regulation M

On March 23, 2022 the Securities and Exchange Commission (the “SEC”) issued a proposing release (the “Release”) to implement changes to Regulation M. Specifically, the proposed rulemaking would…

Author(s): Jeremy Barr, Isaac Ellman

  • capital markets and securities
  • corporate
  • corporate governance
  • financial institutions

SPAC to the Future? SEC Takes Aim at the De-SPAC

The SEC has issued its long-awaited rule proposals regarding SPACs and de-SPACs.  The proposals, if adopted, will significantly alter the de-SPAC route to the public markets for private companies and…

Author(s): Michael Levitt, Valerie Ford Jacob, Pamela Marcogliese

  • capital markets and securities
  • corporate
  • corporate governance
  • m&a
  • spacs
  • financial institutions

California Court Invalidates California Board Diversity Statute – What California Companies Should Know Now

Background On September 30, 2020, California Governor Gavin Newsom signed into law Assembly Bill 979 (AB 979), which required California-based public companies to have at least one director from an…

Author(s): Sarah Solum, Elizabeth Bieber, Taryn Zucker, Jennifer Burrow

  • corporate governance
  • corporate

SEC Provides Guidance on 8-K Filing Obligations Related to M&A Transactions

On March 22, 2022, the U.S. Securities and Exchange Commission (the “SEC”) published two new compliance and disclosure interpretations (“C&DIs”) relating to Item 1.01 of Form 8-Ks in respect of…

Author(s): Jeremy Barr, Fatima Anjum

  • corporate
  • m&a
  • corporate governance
  • capital markets and securities

SEC Issues Guidance on SPAC Sponsors Purchasing Shares During a Redemption Offer

On March 22, 2022, the U.S. Securities and Exchange Commission (the “SEC”) published a new compliance and disclosure interpretation (“C&DI”) that provided guidance as to when and how a SPAC sponsor…

Author(s): Jeremy Barr, Fatima Anjum, Pamela Marcogliese

  • capital markets and securities
  • m&a
  • corporate
  • spacs

Developments in Delaware SPAC Law

The following article was published by Corporate Counsel on March 21, 2022. Click here to view. Republished with permission. In the last year, Delaware courts have adapted familiar jurisprudence to…

Author(s): Meredith Kotler, Mary Eaton, Shannon McGovern

  • delaware law
  • corporate governance
  • litigation
  • m&a

Why the SEC’s Proposed New Direction on Beneficial Ownership Reporting Is a Win for Boards and Investors

This article originally appeared in The New York Law Journal on March 1, 2022. Earlier this month, the Securities and Exchange Commission proposed regulations that, if adopted, will provide a…

Author(s): Ethan Klingsberg, Damien Zoubek, Paul Tiger, Elizabeth Bieber

  • corporate
  • corporate governance
  • shareholder activism

A Political Economy of the 2022 Cryptoverse

As revolutionary a year as 2021 was for the cryptoverse, 2022 promises even more significant legal developments that will shape market structure and potential. There is an evolving political economy…

Author(s): Brock Dahl

  • capital markets and securities
  • corporate governance
  • litigation
  • financial institutions
  • venture capital
  • fintech

“Silenced No More”: Capitol Hill Takes Aim at Mandatory Arbitration Clauses

Last week, companies around the world continued to find themselves uncomfortably in the spotlight as allegations of sexual harassment, pay inequity, and disparate treatment of women in the workplace…

Author(s): Olivia Radin, Jennifer Loeb

  • arbitration
  • corporate governance
  • litigation
  • investigations
  • international arbitration

Reflecting on Rev. Dr. Martin Luther King Jr.’s words: How do corporate ESG commitments stack up?

To mark the beginning of Black History Month in the US, Timothy Wilkins, Freshfields’ global partner for client sustainability, shared his views on the development of corporate ESG trends and…

Author(s): Timothy Wilkins

  • corporate governance
  • diversity and inclusion
  • sustainability

US Securities Fraud Liability for Non-US Issuers of Securities Subject to Unsponsored ADRs: New Ruling Opens Up Additional Defense Strategies

Non-US issuers of securities with unsponsored ADRs in US capital markets may have gained a new defense strategy, a federal court in Los Angeles held earlier this month.[1]  The latest ruling is part…

Author(s): Linda Martin, David Livshiz, Doru Gavril, Henry Hutten

  • litigation
  • corporate governance

Is it time for big biopharma companies to rethink the use of federal funding for R&D?

This article was originally published in STAT on January 18, 2022. I have been negotiating with representatives of the federal government on behalf of biopharmaceutical companies since starting in…

Author(s): Kristen Riemenschneider

  • covid-19
  • life sciences
  • ip transactions
  • government funding
  • corporate

2021 De-SPAC Debrief

We’re pleased to announce Freshfields’ 2021 De-SPAC Debrief: A comprehensive review of all de-SPAC transactions that closed in 2021. 2021 was a record-breaking year in SPAC M&A with more de-SPAC…

Author(s): Michael Levitt, Valerie Ford Jacob, Sebastian Fain, Pamela Marcogliese, Paul Tiger, Andrea Basham

  • capital markets and securities
  • m&a
  • spacs
  • de-spacs

Freshfields Team Authors Anti-Corruption Practice Guide

Amid active anti-corruption efforts by US and foreign authorities in recent years, the Biden administration emphasized during 2021 that corruption is not just a priority but a “core national security…

Author(s): Eric Bruce, Justin Simeone, Andrew Bulovsky

  • investigations
  • litigation
  • corporate
  • financial institutions

Distressed Financing Pitfalls: When Execution Goes Off Track (Part 4)

In Parts 1, 2 and 3 we covered some easy traps to fall into when trying to execute a distressed financing transaction but we can’t stop ourselves from pointing out one more potential pitfall: Halting…

Author(s): Samantha Braunstein, Lacey Nemergut

  • finance
  • restructuring and insolvency
  • corporate
  • financial institutions

Freshfields partner and co-head of US Corporate and M&A Ethan Klingsberg talks M&A in 2022 with Bloomberg TV

Partner and co-head of US Corporate and M&A Ethan Klingsberg recently appeared on Bloomberg Markets: The Close to discuss what he sees as the key drivers for deals in 2022. “You know there are a lot…

Author(s): Ethan Klingsberg

  • m&a
  • spacs

There’s a new CFIUS Excepted Foreign State, but status will still benefit relatively few investors

Qualifying investors from a list of “Excepted Foreign States” (colloquially referred to as the “whitelist”) enjoy certain privileges under the regulations of the Committee on Foreign Investment in…

Author(s): Aimen Mir, Christine Laciak, Colin Costello

  • cfius

Ten key medtech themes for 2022

The COVID-19 pandemic has accelerated the transformation of business models in the life sciences industry, with digital initiatives coming to the forefront. The combination of rapid technological…

Author(s): Vinita Kailasanath, Nida Rais

  • healthcare
  • medtech
  • life sciences
  • digital health
  • regulatory
  • corporate
  • mergers and acquisitions
  • us

M&A predictions for 2022: where the tensions, the action and the hot spots will be and why

As the 2022 pipeline continues to flow, here’s a quick preview of where the tensions, action and hot spots will be in M&A this year, together with explanations of why this will be the case.…

Author(s): Ethan Klingsberg

  • m&a
  • corporate
  • spacs

Delaware Chancery Court Issues First SPAC Decision

In a much-anticipated decision, the Delaware Court of Chancery issued its first opinion involving shareholder challenges to de-SPAC transactions. [1] The court largely denied defendants’ motions to…

Author(s): Mary Eaton, Sebastian Fain, Michael Levitt, Nicholas Caselli

  • corporate
  • delaware law
  • capital markets and securities

Freshfields partner Aimen Mir talks CFIUS, FI Monitor with The M&A Journal

Washington-based partner Aimen Mir, who served in several leadership roles in the Committee on Foreign Investment in the US (CFIUS) and the US Department of Treasury, recently sat down with The M&A…

Author(s): Aimen Mir

  • cfius
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