Mergers & Acquisitions Law Report Index-Summary

SANCTIONS

See generally PENALTIES

SAVINGS AND LOAN ASSOCIATIONS (S&Ls)

SECURITIES

– Asset swap between Citigroup unit and Legg Mason, suit alleging omissions in offering documents dismissed (2d Cir.), 950
– Board self-issued shares as compensation for personal guaranties during firm's financial crisis upheld (1st Cir.), 999
– Economic hardship of issuer insufficient to treat nonstock ownership interest as stock for NOL purposes, 1032
– Fair value accounting

See ACCOUNTING

– Fraud

See SECURITIES FRAUD

– GM stock as worthless, Analysis & Perspective, 607
– Hot stock regs. well received, questions remain, 57; N.Y. Bar expresses support, recommendations, 958
– Insider trading

See INSIDER TRADING

– Merger agreements in a down market, Analysis and Perspective, 292
– Partnerships, Ernst & Young partner reporting partnership-for-shares swap constructively received stock on date deposited (7th Cir.), 370
– Price challenge barred by prior knowledge and acceptance (4th Cir.), 124
– Proxies, misleading solicitations, Private Securities Litigation Reform Act does not require state of mind for violation (7th Cir.), 283
– Registration, firm selling assets to subsidiary in exchange for stock transferred to shareholders lacks standing to complain of untimely registration (Del. Super. Ct.), 333
– Resale restrictions, internal discussions not initiation of transaction to avoid agreement requiring additional payments (S.D.N.Y.), 949
– Securities Act Rules 144 and 145, and Securities Exchange Act Rule 13e-3 clarified, 146
– Securitized assets, stricter capital requirements may put end to use by banking industry, 875
– Short-swing profits

See SHORT-SWING PROFITS

– Standing, minority shareholder claim for dissolution not extinguished by cash-out merger (Wis.), 413
– Stock drop litigation

See ERISA

– Stock exchanges

See STOCK MARKETS

– Stock purchases treated as asset acquisitions, §338(h)(10) election

– – Ga., state tax on gain on eliminated (Ga. Ct. App.), 193
– – No taxable gain (N.J. Super. Ct.), 702
– – S.C., election automatically applies for state income tax purposes, 286

– Stock redemption under contract agreement followed by acquisition resulting in higher price subject not breach of fiduciary duty (Del. Ch.), 443
– Subsidiary stock sale

See CONSOLIDATED RETURNS

– Substantial purchase disclosure requirements, Mylan/King merger, hedge fund settles SEC charges of violation (SEC), 700
– Taxation, basis

– – (B) reorganizations, safe harbor under consideration, 57
– – Distributions, recovery and identification Prop. Regs. issued, 78; IRS discusses, basis shifting remains concern, 340; IRS amenable to change, further comments sought, 419; IRS corrections, In Brief, 516
– – Subsidiary stock transactions, netting of gains and losses urged, 58

– Tender offers

– – Credit Suisse acquisition of Donaldson, Lufkin & Henrette, dismissal for failure to prosecute denied (Del. Ch.), 444
– – Price increase, attorneys' fees rejected for lack of causal connection (Del. Ch.), 334

– Valuation

– – Bidder deterrence agreement, shareholders' breach of duty claim granted expedited hearing (Del. Ch.), 646
– – Ownership changes in loss corporations, guidance under development, 55
– – Preferred stockholder rights deemed contract rights derived from certificate of designation (Del. Ch.), 391

SECURITIES DEALERS

See BROKER-DEALERS

SECURITIES FRAUD

– Amendment of complaint, class actions, trial court has discretion to disallow (7th Cir.), 1000
– Bank of America, Ohio takes lead in class action claiming false proxy statements (S.D.N.Y.), 923
– Denver-based promoter firm charged with pump/dump scheme (D. Colo.), 233
– Dividends, class action over failure to disclose in connection with buy back offer, close proximity to end of tender offer insufficient (5th Cir.), 393
– Financial misstatements, knowing and reckless dissemination of false information, leave to replead scienter granted (4th Cir.), 753
– Foreign Corruption Practices Act

See FOREIGN CORRUPT PRACTICES ACT

– France authority fines Swiss CEO for sham bid for Euro Disney, 453
– Hedge funds

See HEDGE FUNDS

– Merrill Lynch continues to be target of securities litigation after BoA acquisition, 828
– Military contracts, termination for default, investors' failure to disclose claims to proceed (E.D.N.Y.), 363
– Minority shareholders

See SHAREHOLDERS

– Misrepresentations, failure to disclose negotiations in face of ambiguous merger agreement inadequately plead scienter (D. Conn.), 258; amended complaint claim for failure to disclose guarantee limit dismissed, 817
– Pleadings

See PLEADINGS

– Private Securities Litigation Reform Act, false earning projects accompanied by cautionary language sufficient to comply with safe harbor (M.D. Fla.), 793
– Pro se litigant sanctioned for pursuing frivolous claims (D. Conn.), 818
– Securities Litigation Uniform Standards Act, class action state law negligence claim deemed within scope of Del. carve-out (9th Cir.), 168
– Tyco/CIT Group merger, Tyco board member settles claims (D.N.H.), 1075

SEMICONDUCTORS

See TECHNOLOGY INDUSTRY

SETTLEMENTS

– Anti-dilution clause, settlement agreement with shareholders not additional compensation entitling debtors to additional money (E.D. La.), 364
– Bankruptcy, payments to shareholders in leveraged buyout of privately held company exempt from avoidance (6th Cir.), 698
– BASF Ciba Holding acquisition, FTC approves subject to divestitures (FTC), 303
– Economic downturn not grounds for modification of final judgment (D.D.C.), 334
– Hexion Specialty Chemicals/Huntsman merger

– – Credit Suisse Securities and Deutsch Bank Securities agree to pay Huntsman millions and provide debt financing (Tex. Dist. Ct.), 622
– – Settlement bars claims against lending banks for specific performance (N.Y. Sup. Ct.), 167

– Insider transactions, sale of stock within 6-mo. period to comply with settlement subject to short-swing profits liability (S.D. Fla.), 792
– King Pharmaceuticals/Mylan merger, hedge fund settles SEC charges of failure to disclose substantial investment in Mylan (SEC), 700
– PNC/National City merger, NCC shareholder claims settled by additional disclosures (Del. Ch.), 791
– Res judicata not bar to action seeking release of collateral (2d Cir.), 445
– Stock purchase at inflated price, fiduciary approving settlement has duty to investigate on behalf of plan (D.D.C.), 262
– Whole Foods/Wild Oats merger, FTC reaches agreements with Whole Foods (FTC), 229

SEVERANCE PAY

– Change in control

– – Executive terminated before change not entitled to enhanced benefits (S.D.N.Y.), 148
– – Same pay and title with reduction in responsibilities deemed (D.N.J.), 594

– Delta Air Lines cuts capacity, announces voluntary program, 8

SHAREHOLDERS

– Anti-takeover defenses becoming less effective, Special Report, 966
– Closely held corporations, shareholders owe fiduciary duty to each other (Utah), 948
– Derivative actions

See DERIVATIVE ACTIONS

– Hostile takeovers and investor activism increasing, 871
– Minority shareholders

– – Claims of omissions in registration statement fail to meet Fed. R. Civ. P. Rule 9(b) pleading standards (9th Cir.), 74
– – Hedge funds, prior knowledge bars claim (7th Cir.), 31
– – John Q. Hammons Hotels, claims of fair price and dealings to proceed to trial (Del. Ch.), 998
– – Recapitalization transaction, minority shareholder claims of failure to disclose key information to proceed (Del. Ch.), 507
– – Short-form mergers

– – – Appraisal exclusive valuation remedy (3d Cir.), 924
– – – Failure to disclose material facts, minority shareholders allowed to pursue quasi-appraisal unrestricted by opt-in or escrow requirement (Del.), 671

– – Standing, claim for dissolution not extinguished by cash-out merger (Wis.), 413
– – Stock sales, right of first refusal, insiders have duty to disclose insider information (Del. Ch.), 747

– Shareholder rights/poison pill plan, Selectica seeks validation of plan designed to prevent loss of NOLs (Del. Ch.), 144

SHIPS AND SHIPPING

– A.P. Moeller-Maersk /Brostrom merger, EC approves, 85
– DSV and Vesterhavet joint acquisition of DFDS, deal canceled after EC opens investigation, 601
– EC merger approvals

See EU MERGER APPROVAL

– Hutchison Whampoa and Evergreen Group joint acquisition of Taranto Container Terminal, EC approves, 15
– Mauser Holding Intl. and Reyde, EC approves joint venture, 87

SHORT-SWING PROFITS

– Sale of stock within 6-mo. period to comply with settlement agreement subject to liability (S.D. Fla.), 792

SOFTWARE

See TECHNOLOGY INDUSTRY

SOUTH KOREA

– Foreign direct investment

– – Cash grant and tax break system to be reformed, 543
– – Free economic zone incentives access eased, 290

SOVEREIGN WEALTH FUNDS

– GAO report urges increased oversight of data on ownership of restricted assets, 487
– Investment activity likely to increase, lack of scrutiny noted in research report, 314

SPAIN

– Goodwill, EC orders end to tax break, 1033

SPECIAL REPORTS

– Banks, IRS Notice 2008-83 allowing losses on ownership changes likely to be overturned in stimulus package, 134
– Del. law, review of recent cases, 888
– Hostile takeover defenses being eroded, 966

SPORTS

– Bankruptcy

– – Chicago Cubs file for Ch. 11 (Bankr. D Del.), 984
– – Phoenix Coyotes hockey team, PSE Sports & Entertainment bid rejected, NHL urged to make another attempt (Bankr. D. Ariz.), 962; NHL clarified bid approved, 1082

– Dick's Sporting Goods, Galyan acquisition, insider trading charges against executive and friends settled (W.D. Pa.), 395

STANDING

– AT&T participants transferred to Lucent Technologies lack (10th Cir.), 234
– ERISA, cash balance plan conversions, J.P. Morgan employee receiving full distribution has standing to seek damages for deficiency of notice (S.D.N.Y.), 105
– ESOP participants lack to claim breach of fiduciary duty (S.D. Fla.), 447
– Failure to timely register securities, firm selling assets to subsidiary in exchange for stock transferred to shareholders lacks (Del. Super. Ct.), 333
– Minority shareholder claim for dissolution not extinguished by cash-out merger (Wis.), 413
– Stock option backdating, standing to bring derivative action lost by merger (Ind. Ct. App.), 166

STATE AND LOCAL TAXES

– Calif. Franchise Tax Bd. parts with IRS over treatment of bank losses following ownership changes, 285; Board set to draft regs., 401; Prop. Regs. issued, 826
– Ga., IRC §338(h)(10) election does not elimination state tax on gain (Ga. Ct. App.), 193
– Idaho, NOLs, special limitations on losses of merged companies eliminated, In Brief, 827
– Mass., liquidation of subsidiary does not lead to loss of investment tax credit (Mass.), 703
– N.J., stock purchases treated as asset acquisitions, §338(h)(10) election produces no taxable gain (N.J. Super. Ct. App. Div.), 702
– N.Y.

– – Empire Zone benefits

– – – Company ceasing operations after merger with out-of-state entity considered new business (N.Y. Dept. of Taxn. and Fin.), 778
– – – Parent and subsidiary qualify for benefits if combined franchise tax filed and entities merge (N.Y. Dept. of Taxn. and Fin.), 494
– – – Partnerships, sale of assets during partnership year creates 2 taxable years within same 12-month period (N.Y. Div. Tax App.), 1032

– – Sales tax on assets transferred to dormant corporation not qualified for exemption (N.Y. Div. Tax App.), 905

– S.C., IRC §338(h)(10) election automatically applies for state income tax purposes, 286

STATUTES OF LIMITATIONS

– Environmental remediation, state law bars city action under common law, state statute-based claims allowed (Ind.), 103

STEEL

See METALS

STOCK

See SECURITIES

STOCK MARKETS

– Eurex/ISE merger, insider trading charges filed against consultant's friends (S.D.N.Y.), 819
– Italy, securities regulator to suspend notice requirements for changes in holdings, 111
– NASD and NYSE Regulation merger

– – Former NASD member claims false and misleading statements (S.D.N.Y.), 32
– – Sealed court records, news groups seek to unseal (S.D.N.Y.), 1073

– Nasdaq OMX Group

– – Derivatives clearinghouse subsidiary open to equity partners, 54
– – Taiwan Futures Exchange agrees to consider joint business activities, 261

– NYSE Euronext and Depository Trust & Clearing announce joint venture to clear U.S. fixed income derivatives, 648
– NYSE Euronext and Qatar launch equities and derivatives exchange in Doha, 649
– Philadelphia Stock Exch. merger, stock allocation plan in settlement of class suit challenging ownership approved (Del.), 143

STOCK OPTIONS

– Backdating, standing to bring derivative action lost by merger (Ind. Ct. App.), 166
– Elimination and replacement with bonuses not constructive discharge under plan terms (5th Cir.), 567
– Future value inclusion in cash-out agreement

– – Admissions in pleadings properly considered (Del.), 236
– – Insurer not required to defend fiduciary liability against claims by former officers and directors (N.J. Super. Ct. App. Div.), 748

STOCK PURCHASES TREATED AS ASSET ACQUISITIONS

– State taxation

See STATE AND LOCAL TAXES

SUCCESSOR LIABILITY

– Citigroup Financial purchase of Knight Financial Productions, brokers and investors fail to prove exception to nonliability (N.D. Ill.), 260
– Collective bargaining, perfectly clear successor applicable only where employer leads predecessor employees to believe employment status would remain unchanged (D.C. Cir.), 650
– Environmental remediation

– – Chevron, Ecuadorian operations of Texaco, final written arguments being prepared, 465; new allegations of corruption by Ecuadorian officials surface, 842
– – Kerr-McGee and Anadarko Petroleum charged with fraudulently spinning off liabilities to company ending up in bankruptcy (S.D.N.Y.), 509
– – McGraw-Edison deemed successor to Studebaker (Ind.), 103
– – Prior settlement cannot be used to show liability (N.D. Ind.), 214
– – Strict liability imposed on seller failing to obtain pre-sale “no further act” letter from state (N.J. Super. Ct. App. Div.), 773

– Pensions

– – Alter egos, successor of dissolved firm liable for unpaid contributions (E.D. Mo.), 77
– – Delinquent contributions, knowledge of attorney not imputed to purchaser (N.D. Ill.), 307
– – Withdrawal liability, successor company with continuity of workforce and location liability deemed (D. Utah), 76

– Product defect liability, successor expressly disclaiming liability in asset purchase agreement not liable (W.D. Ark.), 815

SUPREME COURT, U.S.

– Chrysler/Fiat merger, Ind. pension fund challenge, stay lifted, merger finalized (dec.), 577

SWEDEN

– Saab files for bankruptcy, 201