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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 28 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

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

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

On August 24, 2023, the Second Circuit in Kirschner v. JP Morgan Chase Bank, N.A., No. 21-2726 (2d Cir. Oct. 28, 2021) affirmed a decision by the Southern District of New York (explained in our prior…

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

  • capital markets and securities

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

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”),...

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

BackgroundOn 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?

BackgroundImagine 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

BackgroundOn 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 valuable…

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....

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.Regulatory…

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. ...

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

CFIUS Decision on Magnachip Deal Shows Long Reach of CFIUS

On December 13, 2021, Magnachip Semiconductor Corporation (“Magnachip”), an NYSE-listed Delaware corporation, and Wise Road Capital LTD (“Wise Road”), a Chinese private equity firm, announced that…

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

  • cfius
  • antitrust and competition

The SEC proposes amendments regarding Rule 10b5-1 trading plans and related disclosures

Rule 10b5-1, adopted in 2000, has for the past two decades provided a safe harbor from insider trading by permitting directors, officers and other company insiders to trade company securities while…

Author(s): Sarah Solum, Pamela Marcogliese, Maj Vaseghi, Elizabeth Bieber, Tracy Zhang

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

The Gift that Keeps Giving: Proposed Rules for Increased Share Repurchase Disclosure

On December 15, 2021, the SEC provided an early holiday present to those calling for enhanced disclosure (and scrutiny) of corporate share buybacks. The proposed amendments to SEC rules require…

Author(s): Pamela Marcogliese, Sebastian Fain, Valerie Ford Jacob, Boris Feldman, Taryn Zucker, Elizabeth Bieber

  • capital markets and securities
  • corporate governance
  • corporate

Climate, Diversity and Control, Oh My: 2022 ISS Proxy Voting Guidelines

Institutional Shareholder Services (“ISS”) released its policy updates and voting guidelines for shareholder meetings beginning in 2022. Unsurprisingly, much of the focus continues to be on…

Author(s): Pamela Marcogliese, Elizabeth Bieber, Jennifer Frolik

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

SEC Modifies Shareholder Proposal Rules, Making it More Difficult for Companies to Exclude ESG Proposals

In November 2021, the SEC issued new guidance regarding the shareholder proposal process in Staff Legal Bulletin 14L, reversing company-friendly positions taken over the past few years regarding the…

Author(s): Valerie Ford Jacob, Michael Levitt

  • capital markets and securities
  • corporate
  • corporate governance

Board Memo 2022: Sustainability and Beyond

Freshfields is pleased to announce our annual Board Memo 2022: Sustainability and Beyond. This year’s report focuses on guiding boards and management through tomorrow’s strategic, operational,…

Author(s): Pamela Marcogliese, Elizabeth Bieber, Sebastian Fain

  • corporate governance
  • corporate
  • capital markets and securities
  • antitrust and competition
  • arbitration
  • benefits
  • cfius
  • cybersecurity
  • data protection
  • executive compensation
  • delaware law
  • finance
  • intellectual property
  • investigations
  • litigation
  • m&a
  • restructuring and insolvency
  • sanctions and trade
  • shareholder activism
  • tax
  • white-collar defense

The State of Clawbacks and the SEC’s Renewed Interest

Recently the Securities and Exchange Commission (the SEC) re-opened the comment period on its proposed clawback regulation first mandated by the Dodd-Frank Wall Street Reform and Consumer Protection…

Author(s): Maj Vaseghi, Lori Goodman, Sarah Ghulamhussain

  • capital markets and securities

SEC Adopts New Rules and Clarifies Timing for Mandatory Trading Suspension of US-Listed Chinese Companies

On December 2, 2021, the US Securities and Exchange Commission (SEC) issued new rules which further implement requirements and clarified the timing related to the potential mandatory trading…

Author(s): Michael Levitt, Sarah Solum, Arun Balasubramanian, Calvin Lai, Jeremy Barr, Tracy Zhang

  • capital markets and securities

Spring-loaded equity awards are back on the SEC’s agenda

On November 29, 2021 the United States Securities and Exchange Commission (the “SEC”) issued new guidance under Staff Accounting Bulletin No. 120 (the “Bulletin”) on estimating the fair value of…

Author(s): Maj Vaseghi, Pamela Marcogliese, Lori Goodman, Elizabeth Bieber, Andrew Herman

  • corporate governance
  • executive compensation
  • delaware law

Distressed Financing Pitfalls: When Execution Goes Off Track (Part 3)

After highlighting some deal mechanics that may appear straightforward in the term sheet stage but can present significant pitfalls during the execution of distressed transaction documents (see Part…

Author(s): Samantha Braunstein, Lacey Nemergut

  • restructuring and insolvency
  • finance
  • corporate
  • financial institutions

DOJ Announces Significant Corporate Enforcement Policy Changes

Last week, in a virtual keynote address delivered at the American Bar Association’s Annual Conference on White Collar Crime, Deputy Attorney General Lisa O. Monaco pledged a DOJ crack-down on…

Author(s): Jennifer Loeb, Eric Bruce, Aaron Marcu, Olivia Radin, Adam Siegel, Kimberly Zelnick

  • investigations
  • white-collar defense
  • litigation
  • corporate crime

Elizabeth Holmes and The Mythology of Silicon Valley

The Theranos criminal trial is underway.  Our task is not to predict its outcome or to pass judgment on Elizabeth Holmes. That is for the jury. Rather, we write to challenge what is fast becoming…

Author(s): Boris Feldman, Sarah Solum

  • litigation
  • corporate
  • venture capital

The Season of ESG

Partner Pamela Marcogliese and counsel and head of activism and shareholder engagement Elizabeth Bieber were recently interviewed by the M&A Journal to discuss the latest ESG trends and their report…

Author(s): Pamela Marcogliese, Elizabeth Bieber

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

Distressed Financing Pitfalls: When Execution Goes Off Track (Part 2)

Welcome back to our blog post series on those distressed financing pitfalls that may seem like little bumps in the road but can cause meaningful delays and issues in the midst of restructuring…

Author(s): Samantha Braunstein, Lacey Nemergut

  • restructuring and insolvency
  • finance
  • corporate
  • financial institutions

US DOJ Sets the Stage for Biden Enforcement Priorities and Potential New Challenges for Corporations Engaged in Global Business

In recent months, the US Department of Justice (DOJ) has begun to signal the Biden administration’s enforcement agenda as well as some of the methods that DOJ intends to use to achieve its…

Author(s): Kimberly Zelnick, Adam Siegel

  • investigations
  • litigation
  • corporate crime

Distressed Financing Pitfalls: When Execution Goes Off Track (Part 1)

The product of complex negotiations, solutions to distressed credits typically require creative problem-solving and prompt implementation. Given that restructuring professionals are principally…

Author(s): Samantha Braunstein, Lacey Nemergut

  • finance
  • corporate
  • restructuring and insolvency
  • financial institutions

Roadmap to Cert: Ninth Circuit Splits from Other Circuits, Itself, and History on Strict Liability for Direct Listings

On September 20, 2021, the Ninth Circuit held that securities sold by third parties and exempt from the registration requirements of the federal securities laws are nevertheless subject to strict…

Author(s): Boris Feldman, Sarah Solum, Doru Gavril, Drew Liming, Abigail West

  • litigation
  • capital markets and securities

AML Update: Recent Enforcement Actions Demonstrate Continued Focus on Crypto

Three recent enforcement actions brought by the Securities Exchange Commission (SEC), the Financial Crimes Enforcement Network (FinCEN), and the Commodities Futures Trading Commission (CFTC) show…

Author(s): Olivia Radin, Jane Peng, Alessandra Scalise

  • finance
  • litigation
  • financial institutions
  • capital markets and securities
  • investigations

SEC Chair Gensler discusses what companies might expect from the SEC’s upcoming climate disclosure rules, following similar developments in Europe

In his remarks before the Principles for Responsible Investment “Climate and Global Financial Markets” webinar on July 28, 2021, SEC Chair Gary Gensler provided insights into what companies might…

Author(s): Sarah Solum, Valerie Ford Jacob, Pamela Marcogliese, Michael Levitt, Elizabeth Bieber, Heather Kellam

  • corporate governance
  • corporate
  • capital markets and securities

HSR Waiting Period Expired? FTC Says Close at Your Own Risk

Yesterday the US Federal Trade Commission (FTC) announced that for certain transactions where it “cannot fully investigate within the requisite timelines,” it will now send letters to merging parties…

Author(s): Jennifer Mellott, Justin Stewart-Teitelbaum, Ethan Klingsberg, Ilana Kattan

  • antitrust and competition
  • m&a

Memo to the commissioners: Improving Rule 10b5-1 without wrecking it

Published August 2, 2021 by Reuters. Re-posted with permission.Twenty years ago, the Securities & Exchange Commission created Rule 10b5-1. Among other things, the new regulation enabled public…

Author(s): Boris Feldman, Sarah Solum

  • capital markets and securities

Clogged PIPE Market Leading to Alternative Financing Structures in Some De-SPAC Business Combinations

The standard PIPE playbook for de-SPAC business combinations in the last 12-18 months has been remarkably consistent: a SPAC wall crosses a number of institutional investors, shares historical and…

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

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

Biden Administration Reworks US Sanctions Targeting Chinese Companies’ Securities

On June 3, 2021, President Biden issued an Executive Order Addressing the Threat from Securities Investments that Finance Certain Companies of the People’s Republic of China  (the CMIC EO), including…

Author(s): Nabeel Yousef, Kimberly Zelnick, Stephanie Brown Cripps, Teresa Ko, John Choong, Alexander Dmitrenko

  • sanctions and trade
  • m&a
  • corporate
  • china

Interim Operating Covenants: Lessons for the Recovery Period from Deal Litigation during the Pandemic

Reflecting on the past year, we believe that the key lesson of pandemic-era deal litigation has come from the Delaware Court of Chancery’s treatment of interim operating covenants.  Recent rulings…

Author(s): Paul Tiger, Boris Feldman, Doru Gavril

  • litigation
  • m&a
  • delaware law

SEC Scrutiny Spooked The SPAC Market, But Won't Stifle It

The following article was published by Law360 on May 7, 2021. It was written by Benjamin Horney. Click here to view.The pace of special purpose acquisition company initial public offerings and…

Author(s): Andrea Basham, Kimberly Zelnick, Michael Levitt

  • spacs
  • m&a
  • corporate governance
  • investigations
  • white-collar defense
  • capital markets and securities

Tower Versus Tower: Implications of SPAC Shareholder Litigation for the D&O Insurance World

Historically, bubbles are followed by suits. After the Dot-Com Boom came the Dot-Com Bust, along with years of shareholder litigation. Ditto for the Credit Crunch. As we emerge from The Lockdown,…

Author(s): Boris Feldman

  • spacs
  • litigation
  • m&a
  • capital markets and securities
  • d&o insurance
  • shareholder litigation
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