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Legal Developments

Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Dreaded Right of First Refusal and the “Packaged” Asset Deal

Contributor(s)

Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Retained Liabilities: Expiration of an Indemnification Obligation Respecting a Retained Liability Does Not Impose the Retained Liability Upon the Indemnified Party

Contributor(s)

Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Representing a Portfolio Company: Delaware Law Declares that the Entire Board, and Any Shareholder Who Appointed a Specific Member of the Board, are all Joint Clients

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Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Testing Your Fluency in the “Secret Language” of Choice-of-Law/Forum-Selection Clauses

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Features, Funds, Insights, Legal Developments, What's New on the Watch?

Regulatory Developments and Annual Compliance Obligations Applicable to Private Fund Sponsors

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Non-Competes and Forfeiture-for-Competition Provisions – The Reasonableness Override Under Delaware Law

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

New Cases Shed Further Light on the Limits of Non-Recourse Provisions

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Warning: Some Contractual Words May Actually Be Magic

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Musings on the Exercise of “Sole Discretion”

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

When Does “And” Mean “Or”?

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Supposed Hierarchy of “Efforts” Clauses

Contributor(s)

COVID-19 Updates, Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

COVID-19 and Lease Obligations: Does a Force Majeure Clause Override the Frustration of Purpose Doctrine?

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Latest Word on Fee-Shifting Pursuant to an Indemnification Provision

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

One of the Perils of 50/50 Ownership and Control: A Vague Standard for Determining the Validity of Board Actions Legally Taken but Alleged to Have Had an “Inequitable Purpose”

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Survival Periods—Covenants Are Not Representations or Warranties, and Fraud Claims Premised Upon Contractual Representations and Warranties Are Not the Same as Indemnification Claims

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Silence Appears to Remain Golden—Contractarian Principles Are Reaffirmed in the So-Called “Sandbagging” Debate

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Beware the Type II Preliminary Agreement

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Features, Insights, Legal Developments, What's New on the Watch?

ASHINC or Swim Case Study: Lessons for Private Equity Sponsors on Distressed Portfolio Company Risks (Part I: Sponsor Breach of Company Loan Agreement)

Contributor(s)

Ronit
Berkovich

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Are Consequential Damages Recoverable for Breach of a Contractual Obligation to Pay a Sum of Money?

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

A Critical Determination: Who Is the Restricted Person in a Change of Control or Anti-Assignment Clause?

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Excluded Loss Provisions and the Danger of Contractually Slaying Mythical Dragons

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Convertible Debt: A New York Usury Refresher

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Fraud Carve-Outs Come of Age

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Features, Insights, Legal Developments, What's New on the Watch?

OFAC Issues Sanctions Compliance Guidelines for Virtual Currency Industry

Contributor(s)

Shawn B.
Cooley

Timothy C.
Welch

Glenda
Bleiberg

Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

What Has Been Terminated When You Terminate Your Contract?

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Portfolio Company Matters, What's New on the Watch?

When Is a Person’s Status as an Affiliate Relevant?

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

Too Much Dynamite—The Non-Recourse and Survival Clauses Are Both Subject to Delaware’s Built-In Fraud Carve-Out for Intentional Intra-Contractual Fraud

Contributor(s)

Features, Insights, Legal Developments, What's New on the Watch?

More Resources, More Tools: The 2020 Annual CFIUS Report Shows Faster Clearance Times and More Robust Review Capabilities

Contributor(s)

Shawn B.
Cooley

Nathan
Cunningham

Timothy C.
Welch

Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

Stuff You Might Need to Know: What Assignments Do Broad Anti-Assignment Clauses Not Prohibit?

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Contractually Reimposing Fiduciary Duties in an LLC Operating Agreement Despite Clause Waiving Fiduciary Duties

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

Delaware Once More Rejects a Buyer’s Efforts to Invoke an MAE Clause

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

There Is More to a Choice-of-Law Clause Than Filling in the Name of the Selected State

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

Fraud Based Upon Oral Future Promises (Unlike Fraud Based Upon Oral Misrepresentations of Fact) Can Be Defeated by a Standard Integration Clause

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

The MAE Clause, Mrs. Palsgraf and Events “Arising From or Related To” MAE Exceptions

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Europe, Features, Insights, Legal Developments, SPACs, Thought Leadership, What's New on the Watch?

SPACS Come to the U.K.

Contributor(s)

David
Avery-Gee

Features, Insights, Legal Developments, Trends, What's New on the Watch?

Crypto Comes of Age: M&A Considerations as Crypto Deal Activity Surges

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

Cash Left Behind by the Seller in the Target Belongs to the Target

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Sell-side, What's New on the Watch?

Delaware Declares That Deliberate Fraud Is Indeed Something Completely Different Than Reckless Fraud

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Shareholder Agreements, What's New on the Watch?

Determining the Fair Market Value of Shares—“Unintended Mischief” from Marketability and Minority Discounts

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Features, Funds, Insights, Legal Developments, What's New on the Watch?

Regulatory Developments and Annual Compliance Obligations Applicable to Private Fund Sponsors

Contributor(s)

Features, Insights, Legal Developments, What's New on the Watch?

FTC and DOJ Temporarily Suspend Early Termination of HSR Waiting Periods

Contributor(s)

Vadim M.
Brusser

Michael C.
Naughton

Alexis
Brown-Reilly

Features, Glenn West Musings, Insights, Legal Developments, Sell-side, What's New on the Watch?

The Limits of Liability Limitation Provisions: Nonrecourse Clause, Like Exclusive Remedies Provision, May Be Subject to Delaware Public Policy Exception

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

When “Liquidated Damages” Are Not—The Common Law’s Abhorrence of Penalties and What You May or May Not Be Able to Do About It

Contributor(s)

Distressed, Features, Insights, Legal Developments, What's New on the Watch?

Warning to Directors of Selling Companies: Breach of Fiduciary Duty Liability May Exist for Failure to Investigate and Ensure Solvency of Company Post-Closing and Propriety and Effect of All Related Transactions (But You Can Protect Yourself)

Contributor(s)

Ronit
Berkovich

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The First-Party/Third-Party Claim Distinction in Indemnification Provisions—Unambiguously Broad Is Not Necessarily the Same Thing as “Clear and Unequivocal”

Contributor(s)

Europe, Legal Developments, Specialist Areas, Thought Leadership, What's New on the Watch?

U.K. National Security and Investment Bill

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Latest Effort to Use Fraud to Overcome a No-Indemnity Deal—The Target’s Preparation of the Preliminary Closing Statement

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Mergers and Restrictions on Assignments by “Operation of Law”

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

No-Third-Party-Beneficiary Clauses and the “Ever-Evolving Contractual Arms Race”

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Recent Delaware Cases Illustrating How Uncapped Fraud Claims Can and Cannot Be Premised Upon Written Representations

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Limits of Interposing a Limited Liability Entity as the General Partner of a Limited Partnership

Contributor(s)

Features, Funds, Insights, Legal Developments

SEC Charges Private Fund Sponsor with Compliance Failures Regarding the Potential Misuse of Material Nonpublic Information

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Do You Really Know What “Consequential Damages” Means?

Contributor(s)

Features, Insights, Legal Developments, What's New on the Watch?

Preferred Buyers Beware

Contributor(s)

Douglas P.
Warner

Distressed, Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

An Asset Purchase That Wasn’t—Beware the De Facto Merger Doctrine in Distressed M&A

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Contractual Declarations of Legal Rights or Status—Just Because You Say It Is Or Isn’t So, Doesn’t Mean It Is Or Isn’t So

Contributor(s)

COVID-19 Updates, Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Impossibility, Impracticability, Frustration, Force Majeure, Efficient Breach, and COVID-19

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Features, Funds, Insights, Legal Developments, What's New on the Watch?

Cayman Islands Added to the EU Blacklist — Private Fund Sponsor Update

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Your Mother Was Right: Following Your Friends (or Market Studies) Off a Bridge is a Bad Idea

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Features, Funds, Insights, Legal Developments, What's New on the Watch?

Regulatory Developments and Annual Compliance Obligations Applicable to Private Fund Sponsors

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Defining “Material”—What Matter Will Matter?

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, R&W Insurance, What's New on the Watch?

Indemnify is a Funny Word Carrying Historical Baggage—Be Aware and Use with Care

Contributor(s)

Features, Insights, Legal Developments, Specialist Areas, Thought Leadership, What's New on the Watch?

Sun Capital Update: First Circuit Rules Affiliated Investment Funds Not Responsible for Portfolio Company’s Pension Liability, Reversing District Court

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Special Order Your Forum Selection Clause

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

“Location, Location, Location”—The Three Things that Matter the Most in Real Estate May Also Matter the Most in Ensuring the Proper Application of All of Your Contractually Chosen Law

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Little-Regarded Confidentiality Agreement—Distinguishing Between “Affiliates” Entitled to Receive Confidential Information and “Affiliates” Actually Bound by the Confidentiality Agreement

Contributor(s)

Europe, Features, Legal Developments, Thought Leadership, U.K., What's New on the Watch?

Can a Parent be Liable for Loss Caused by its Subsidiaries?

Contributor(s)

Marco
Compagnoni

Max
Oppenheimer

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

“Standard” Versus “Bespoke” Boilerplate—A Distinction That Can Make a Big Difference

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Forever is a Long Time or No Time at All: More Idiosyncrasies of the Common Law of Contract You Need to Know

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Avoiding the Other F-Word: An Anti-Reliance Clause Should Actually Disclaim Reliance on Extra-Contractual Representations Even When the Parties Agree that None Were Made

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Serving on the Board of Your Portfolio Company: Be Careful What You Share in Emails and Texts Among You and Your Firm’s Other Designated Board Members

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Thought Leadership, What's New on the Watch?

There is No Fraud Without “Justifiable” Reliance: Unambiguous Terms of Written Contract Trump Claims of Fraudulent Inducement Even in the Absence of an Effective Non-Reliance Clause

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Contracting to Avoid Tort-Based Punitive Damages Awards

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Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Zebra versus Striped Horse Phenomenon Rears its Head Again—Distinguishing an Expert Determination from an Arbitration

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Portfolio Company D&O Insurance—Are the Director Designees of PE Owners Actually Covered?

Contributor(s)

Robert F.
Carangelo

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Icebergs in Your Contract—Undefined Fraud Carve-outs Continue to Produce Peril for Innocent Private Equity Sellers

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Words Matter—Even Deleted Ones in a List of Potentially “Redundant Synonyms” from a Prior Draft

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, R&W Insurance, Trends, What's New on the Watch?

While Time Marches On—Breach of Representations & Warranties, Survival Periods, and New York’s Statute of Limitations

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

A Delaware Case Has Finally Determined That There is Such a Thing as a “Material Adverse Effect”

Contributor(s)

Features, Insights, Legal Developments, Private Equity Finance, What's New on the Watch?

Recent Regulatory Announcement May Increase Leverage Levels on Buyout Loans

Contributor(s)

Andrew J.
Colao

Catherine Minji
Kim

Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, Topics, Trends, What's New on the Watch?

A Delaware Supreme Court Footnote Reignites Concerns about the Reliability of Contractual Representations & Warranties–Are Deal Lawyers Really Going to Start Debating Sandbagging Again?

Contributor(s)

Europe, Features, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Avoiding a Dog’s Breakfast—Some Timely Reminders of How to Effectively Limit the Universe of Purported Representations upon which Fraud Claims Can be Made

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

Post-Closing Purchase Price Adjustment Mechanics—Distinguishing Expert Determinations from Arbitrations

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Something Borrowed May Make You Blue—Re-Examining New York Choice of Law Clauses

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Cognitive Dissonance in the Common Law of Contracts: Oral Modifications to Written Agreements that Purport to Invalidate Oral Modifications

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, U.K., What's New on the Watch?

How Anti-Assignment Workarounds Work (or Not)

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Specialist Areas, What's New on the Watch?

Usury Bites—A Refresher on an Easily Overlooked Issue in the Restructuring and Private Equity Arenas

Contributor(s)

Features, Insights, Legal Developments, Trends, What's New on the Watch?

Monitoring SEC Compliance with Equity Issuances to Employees

Features, Insights, Legal Developments, Specialist Areas, What's New on the Watch?

Implications for Portfolio Company Borrowers of Recent Fifth Circuit Decision Vacating DOL Fiduciary Rule

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements, R&W Insurance, Topics, Trends, What's New on the Watch?

How a 12 Month Survival Period Can Become A Lot Longer (or Not)—the Required Notice of Claim

Contributor(s)

Distressed, Features, Insights, Legal Developments, What's New on the Watch?

Supreme Court Rejects 546(e) Safe Harbor for “Conduit Transactions”

Features, Insights, Legal Developments, R&W Insurance, What's New on the Watch?

Representation and Warranty Insurance – To Insure, or Not to Insure, That is the Question

Contributor(s)

Features, Insights, Legal Developments, Private Equity Finance, What's New on the Watch?

Comptroller of Currency’s Comments Sow Further Doubt in Leveraged Lending Guidance

Contributor(s)

Andrew J.
Colao

Diligence, Features, Glenn West Musings, Insights, Legal Developments, Specialist Areas, What's New on the Watch?

IP Diligence Can Really Matter in Private Equity Acquisitions—And That Includes Checking the Grammar Used in Purported Employee IP Assignments

Contributor(s)

Features, Legal Developments, Thought Leadership, What's New on the Watch?

Delaware Chancery Court Adopts Unaffected Market Price As “Fair Value” In Appraisal Proceeding; Awards 31% Below Transaction Price

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Not So Funny Things That Can Happen on the Way to Your Contractually Selected Forum

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Specialist Areas, What's New on the Watch?

Transaction-Related Tax Deductions and the Worst Words Ever Spoken by a Deal Professional

Contributor(s)

Asia, Legal Developments, Thought Leadership, What's New on the Watch?

Significant Changes in PRC Outbound Investment Regulations

Contributor(s)

Features, Legal Developments, What's New on the Watch?

After Tax Reform, Should Your Multinational Group Be US Parented?

Contributor(s)

Kimberly S.
Blanchard

Features, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

A New Year’s Resolution for Deal Professionals: Make Sure Your Written Deal Documents Say (And Will Be Interpreted to Mean) What You Meant

Contributor(s)

Features, Insights, Legal Developments, Specialist Areas, What's New on the Watch?

Musings on the Intersection Between Tax Reform and Leveraged Finance Terms

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Your Word May Really Be Your Bond (and a Specifically Enforceable One to Boot)

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Perils of Failing to Define “Voting Power” in a Change of Control Clause

Contributor(s)

Nathaniel
Moore

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

So You Think You Know What a “Definitive” Agreement Is?

Contributor(s)

Cybersecurity, Funds, Legal Developments, What's New on the Watch?

New EU Privacy Laws That May Impact US Private Fund Sponsors

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Mutatis Mutandis, “What a Wonderful Phrase”

Contributor(s)

Funds, Legal Developments, Thought Leadership, What's New on the Watch?

Recent SEC Developments Impacting Private Fund Sponsors

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Making Sure Your “Choice-of-Law” Clause Chooses all of the Laws of the Chosen Jurisdiction

Contributor(s)

Features, Glenn West Musings, Legal Developments, What's New on the Watch?

A Real Beating or a Written Agreement—An English Case Provides a Good Reminder that Oral Agreements Can be Binding

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Avoiding the Mindless Use of the Brainless MAC Clause

Contributor(s)

Legal Developments, Specialist Areas, Thought Leadership, What's New on the Watch?

Tax Court Rejects IRS Attempt to Tax Non-U.S. Investor on Sale of Partnership Interest

Contributor(s)

Funds, Legal Developments, Thought Leadership, What's New on the Watch?

SEC Sanctions Private Fund Manager and Two Principals for Improperly Valuing Assets and Related Violations

Contributor(s)

Ancillary Agreements, Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

What is the Deal with No Oral Modification/Waiver Clauses?

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Agreed Damages or Unenforceable Penalties—Drafting to Affirm the Former and Avoid the Latter

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Purchase Agreements, What's New on the Watch?

When Buyers Must Advance the Defense Costs of the Selling Shareholders They Accuse of Misrepresentations in a Stock Purchase Agreement

Contributor(s)

Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

On Naval Ramming Bows and Contractual Boilerplate—Are Standard “No Third-Party Beneficiary” Clauses Always a Good Thing?

Contributor(s)

Insights, Legal Developments, What's New on the Watch?

Delaware Court Issues Two Post-Trial Appraisal Decisions

Contributor(s)

John A.
Neuwirth

Evert J.
Christensen

Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

A New Reason for Private Equity Sellers to Hate Undefined “Fraud Carve-outs”

Contributor(s)

Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Yoda was Wrong, at Least with Respect to Contracts—“I'll Give it a Try” Evidences an Affirmative Commitment After All

Contributor(s)

Insights, Legal Developments, What's New on the Watch?

Euro Tranches Increase in a Hot Market for Leveraged Loans

Insights, Legal Developments, Trends, What's New on the Watch?

Year in Review: Lemonade

Contributor(s)

Christopher R.
Machera

Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

For Want of a Comma, the Case was Lost

Contributor(s)

Insights, Legal Developments, Specialist Areas, What's New on the Watch?

Environmental Matters under the Trump Administration

Contributor(s)

Matthew D.
Morton

Annemargaret
Connolly

Asia, Insights, Legal Developments, What's New on the Watch?

China Tightens Regulatory Approvals for Outbound Investments

Contributor(s)

Europe, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Contracting Accidentally through Preliminary Agreements—A Writing “Subject To Contract” May or May Not be a Contract

Contributor(s)

Features, Insights, Legal Developments, What's New on the Watch?

Best Practices to Maintain the Privilege in the Private Equity World

Contributor(s)

Paul R.
Genender

Funds, Legal Developments, Thought Leadership, What's New on the Watch?

Regulatory Developments and Annual Compliance Obligations Applicable to Private Fund Sponsors

Contributor(s)

Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

You Can Cry if You Want To, But if You Are Not “the” Party, It’s Probably Not “Your” Party—Distinguishing Between Becoming a “Party” to a Contract and Merely Being an Assignee

Contributor(s)

Insights, Legal Developments, What's New on the Watch?

Deal Certainty and Expert Opinions in M&A Transactions: A Trap for the Unwary?

Antitrust, Legal Developments, Specialist Areas, What's New on the Watch?

Federal Antitrust Agencies Act: Raising HSR Filing Thresholds and Issuing Final Guidelines for International Enforcement and IP Licensing

Contributor(s)

Vadim M.
Brusser

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

“Individually or Collectively, as the Context May Require”—Clarifying the Meaning of Defined Singular Terms; It Might Actually Matter

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Excluded Losses Part II: An English Perspective on the Continued Failure of Predictability Regarding the Use of the Phrase “Consequential or Special Losses”

Contributor(s)

Funds, Insights, Legal Developments, What's New on the Watch?

BEA Amends Foreign Investment Reporting Requirements

Contributor(s)

Timothy C.
Welch

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

“Excluded Losses” Provisions and the “Butterfly Effect”—the Continued Failure of Predictability Regarding Consequential Damages Waivers in M&A Agreements

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

You May be Bound by the Contractual Company You Keep—A Cautionary Tale About the Use of the Term “Affiliate” in an Entity’s Release of Claims

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

How a “Voluntary” Default under An Indenture Converted an Optional Redemption Provision into a Mandatory Redemption Provision Requiring Payment of a Make-Whole Premium

Contributor(s)

Features, Funds, Insights, Legal Developments, What's New on the Watch?

California Enacts New Legislation Requiring Fee Disclosure by Private Funds

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Contract Drafting 101—It Doesn’t Matter What You Actually Meant by What You Said; It Only Matters What is Determined to be Meant by What You Actually Said

Contributor(s)

Funds, Legal Developments, Thought Leadership, What's New on the Watch?

SEC Adopts Amendments to Form ADV Regarding Separately Managed Accounts and Umbrella Registration and Advisers Act Recordkeeping Rule

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Freedom of Contract?—An Agreed Damages Clause May Not Actually Be Agreed

Contributor(s)

Europe, Features, Glenn West Musings, Insights, Legal Developments, U.K., What's New on the Watch?

Reps and Warranties Redux—A New English Case, An Old Debate Regarding a Distinction With or Without a Difference

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Be Wary of a Someone Offering a “Fulsome” Set of Reps

Contributor(s)

Features, Funds, Insights, Legal Developments, What's New on the Watch?

SEC Proposes Rule Requiring Registered Investment Advisers to Adopt Business Continuity and Transition Plans

Contributor(s)

Asia, Legal Developments, Thought Leadership, What's New on the Watch?

Chinese Regulators Continue to Liberalize Foreign Exchange and Capital Account, and at the Same Time, Tighten Control on Backdoor Listing

Features, Funds, Insights, Legal Developments, What's New on the Watch?

SEC Adjusts Net Worth Test for Qualified Clients

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Trends, What's New on the Watch?

The Rule Against Perpetuities May Be Forgotten, But It Should Not Be Ignored—It May Still Affect the Validity of Your Deal

Contributor(s)

Europe, Features, Insights, Legal Developments, Thought Leadership, Trends, U.K., What's New on the Watch?

Brexit – the aftermath: 17 things to think about right now

Features, Funds, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

State Pension Funds and their Status as Sovereigns—The Rules That Apply to You May Not Apply To Them

Contributor(s)

Legal Developments, Thought Leadership, What's New on the Watch?

Delaware lululemon Decision Continues Delaware Trend Deferring to Judgments in First-Decided Action in Multi-Forum Derivative Litigation

Contributor(s)

Stacy
Nettleton

Stephen A.
Radin

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

The Transactional Common Interest Privilege in New York—Common, But Not So Privileged

Contributor(s)

Features, Insights, Legal Developments, What's New on the Watch?

Private Equity Adviser Settles Enforcement Action for Acting as an Unregistered Broker-Dealer and Other Violations

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, What's New on the Watch?

Protecting the Private Equity Firm and its Deal Professionals from the Obligations of its Acquisition Vehicles and Portfolio Companies

Contributor(s)

Funds, Legal Developments, Thought Leadership, What's New on the Watch?

SEC Official Remarks on Recent Enforcement Actions Brought Against Private Fund Sponsors

Insights, Legal Developments, What's New on the Watch?

The Marblegate Oral Argument in the Second Circuit Court of Appeals

Contributor(s)

Miranda S.
Schiller

Features, Insights, Legal Developments, What's New on the Watch?

Delaware Supreme Court Confirms that Corwin Rule Applies to Aiding and Abetting Claim

Contributor(s)

Stacy
Nettleton

Features, Glenn West Musings, Insights, Legal Developments

On the Nature of Being Mistaken in Contract

Contributor(s)

Features, Insights, Legal Developments

Beware of “Non-Binding” Term Sheets

Features, Glenn West Musings, Insights, Legal Developments

Advancement and Indemnification for Former Target Company D’s and O’s–Distinct Concepts with Different Results in the Private Company Acquisition Context

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments

Making Sure the Intended Conditions to Your Contractual Obligations are Actually Conditions

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Sell-side

Private Equity Sellers Must View “Fraud Carve-outs” with a Gimlet-Eye

Contributor(s)

Features, Insights, Legal Developments

The Perils of Incorporating Statutory and Regulatory Definitions into Indentures and Other Agreements

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments

The Surprising Connection Between an Extra-Contractual Fraud Claim and a Flesh-Eating Zombie

Contributor(s)

Features, Glenn West Musings, Insights, Legal Developments, Purchase Agreements

Making Sure Your Survival Periods Actually Work as Intended

Contributor(s)

Features, Going Privates, Insights, Legal Developments

End of an Era: The Music Stops for “Disclosure-Only Settlements” in Delaware

Contributor(s)

John A.
Neuwirth

Evert J.
Christensen

Funds, Legal Developments, Thought Leadership

Regulatory Developments and Annual Compliance Obligations Applicable to Private Fund Sponsors

Contributor(s)

Insights, Legal Developments, Specialist Areas

Implementation of Iran Nuclear Deal Leads to Partial Lifting of U.S. and E.U. Sanctions

Glenn West Musings, Insights, Legal Developments, Purchase Agreements

The Law You Choose to Govern Your Contract May Not Be the Law that Governs

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Purchase Agreements

Contractually Designating a Valuation Expert as the Binding Decision Maker Means Just That, Even if the Expert Turns Out to be Wrong

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Purchase Agreements

Private Equity 101 — The Need to Contractually "Box" Identified Risk

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Purchase Agreements

Lessons from a Consequential Case Concerning the Consequences of Consequential Damages Waivers

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Purchase Agreements, Sell-side

Exclusive Remedy Provisions, Fraud Carve-outs, and Personal Liability for Sell-Side Private Equity Professionals

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Purchase Agreements

Promissory Fraud, Anti-reliance and the Dreaded "Undefined" Fraud Carve-out

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Purchase Agreements

Diminution in Value Damages & Waivers of Lost Profits

Contributor(s)

Going Privates, Insights, Legal Developments

Buyer Beware: Availability of Disclosure-Only Shareholder Lawsuit Settlements Following Riverbed Technology

Cybersecurity, Funds, Legal Developments, Thought Leadership

Did the Regulatory Cybersecurity Shoe Just Drop? SEC Enforcement Action in In re R.T. Jones Capital Equities Management, Inc.

Contributor(s)

Funds, Legal Developments, Thought Leadership

OCIE Publishes Risk Alert Regarding Cybersecurity Examination Initiative for Registered Investment Advisers and Broker-Dealers

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Management, Portfolio Company Matters, Purchase Agreements

Writing Indemnification and Advancement Provisions to Protect Former Officers and Directors

Contributor(s)

Funds, Legal Developments, Thought Leadership

Important Regulatory Developments for Investment Advisers Regarding Anti-Money Laundering Regulations and BEA Form BE-180

Contributor(s)

Glenn West Musings, Insights, Legal Developments, Management, Purchase Agreements

Key Takeaways Re: Option Holders Rights from Fox v. CDX Holdings, Inc.

Contributor(s)

Ancillary Agreements, Insights, Legal Developments

Show Me the Money!: Why Escrow Agreements Should Matter to Private Equity Professionals

Insights, Legal Developments, Shareholder Agreements

Director Designation Rights are not Inviolable for PE Sponsors

Contributor(s)

Funds, Legal Developments, Thought Leadership

IRS and Treasury Release Proposed Regulations Addressing Management Fee Waiver Arrangements

Contributor(s)

Jonathan J.
Macke

Europe, Insights, Legal Developments, Specialist Areas, U.K.

Changes to U.K. Tax Treatment of Carried Interest

Contributor(s)

Funds, Legal Developments, Securities Laws, Thought Leadership

SEC Issues Guidance Regarding Investment Adviser Code of Ethics Reporting Exception

Contributor(s)

Insights, Legal Developments, Purchase Agreements

Delaware Supreme Court Clarifies Buyer’s Earn-Out Obligations

Europe, Insights, Legal Developments

Goodbye to Mancos?

Funds, Legal Developments, Thought Leadership

SEC Proposes Amendments to Form ADV Regarding Separately Managed Accounts and Umbrella Registrations

Contributor(s)

Insights, Legal Developments, Specialist Areas

BEA Extends Deadline for Filing Form BE-10 to June 30, 2015

Funds, Legal Developments, Thought Leadership

OCIE Director Shares Observations From Recent SEC Examinations of Private Equity Advisers

Contributor(s)

Legal Developments, Specialist Areas, Thought Leadership

Important BEA Reporting Deadline for U.S. Investors in Foreign Countries

Funds, Legal Developments, Thought Leadership

SEC Division of Investment Management Provides Cybersecurity Guidance to Registered Funds and Advisers

Contributor(s)

Insights, Legal Developments, Purchase Agreements, Shareholder Agreements

The Implications of Halpin v. Riverstone National for Drafting and Exercising Drag-Along Provisions

Contributor(s)

Funds, Legal Developments, Thought Leadership

Prominent Investment Adviser and Former Chief Compliance Officer Settle SEC Enforcement Action Arising from Failure to Disclose Conflict of Interest Regarding Outside Business Activities

Contributor(s)

Insights, Legal Developments, Purchase Agreements, Shareholder Agreements

A Reminder Regarding the Importance of a Well-Drafted Drag Provision

Insights, Legal Developments, Purchase Agreements, Shareholder Agreements

A Potential Shield for PE Sponsors: Interpreting the Term “Affiliate” in Contracts

Contributor(s)

Jeffrey D.
Osterman

Diligence, Insights, Legal Developments, Specialist Areas

M&A FCPA Advisory Following SEC’s Enforcement Action Against Goodyear

Contributor(s)

Funds, Legal Developments, Thought Leadership

Periodic Regulatory Filings and Annual Compliance Obligations Applicable to Private Fund Sponsors in 2015

Contributor(s)

Funds, Legal Developments, Thought Leadership

SEC Issues Guidance on the Application of the Custody Rule to Special Purpose Vehicles and Escrow Accounts

Contributor(s)

Funds, Legal Developments, Thought Leadership

SEC Official Remarks on Recent OCIE Findings from Examinations of Private Equity Advisers

Funds, Legal Developments, Thought Leadership

Annual Compliance Filing Requirements and Additional Regulatory Developments for Private Fund Sponsors

Contributor(s)

Funds, Legal Developments, Securities Laws, Thought Leadership

SEC Issues Guidance Expanding the Scope of Knowledgeable Employee Standard

Funds, Legal Developments, Thought Leadership

SEC Issues Guidance on Regulation D “Bad Actor” Rules

Contributor(s)

Funds, Legal Developments, Securities Laws, Thought Leadership

David Blass Answers Questions with Respect to Broker-Dealer Registration of Private Fund Advisers

Funds, Legal Developments, Securities Laws, Thought Leadership

SEC Issues Guidance Update with Respect to Privately Offered Securities under the Custody Rule

Contributor(s)

Funds, Legal Developments, Securities Laws, Thought Leadership

SEC Adopts Final Rules Permitting General Solicitation in Private Offerings