LATEST ANALYSIS
January 2009
29 Jan 2009
Can hostile acquirors take advantage of depressed equity prices to buy coveted companies on the cheap? Can activist shareholders shake up disappointing boards with impunity? They may want to…
29 Jan 2009
TARP Use of Proceeds: SEC sharpens its Scrutiny; Reducing Benefits: …But it Beats Layoffs; Currency Risks: Shipping Risk Overseas; Whistleblowing: The “Other” Sarbanes Oxley; Executive Leadership in Dour Times: Best Buy Employment Agreement…
29 Jan 2009
Is succession planning merely good advice or is it good governance? The recent debacle over disclosure of the health of Apple’s Steve Jobs calls this issue to the fore. In fact, succession planning has long been a burning issue for many shareholders, as the loss of a…
29 Jan 2009
Has the process of entering bankruptcy become even more unhappy? Apparently so, as the special bankruptcy financing on which it used to depend, has become extra-limited, thanks to constricted credit markets. However…
27 Jan 2009
Executives in 2009 are faced with a potential nightmare scenario: the continuing need to certify filings as certain, in the face of certainty-threatening volatility. With whipsawing markets, plummeting asset prices, and depressing economic conditions, mandated certification of...
27 Jan 2009
Are M&A legal structures about to be pierced or collapsed? Not if the Delaware courts have anything to do with it, as seen as their ruling on the recent Blackstone/Alliance Data aborted acquisition. The upshot: when working with any purchaser, certainly of the PE “smart money” kind, caveat vendor …
27 Jan 2009
Harm to employees and the government are two things companies never want to disclose -- yet many are faced with the need to do just that, as they work through underfunded pensions. Though many pension plans have been…
27 Jan 2009
This week brought another round of significant legal events on both Wall Street and Main Street. The week included huge pharmaceutical mergers and even the President’s tailor going bankrupt. The U.S. government has…
27 Jan 2009
Can you get a “financing out” where all manners of financing seem to be…out? Look no further than the recent multi-billion wave of pharmaceutical M&A, where constricted financing markets define the structures and terms of deals being done….
21 Jan 2009
TARP is about to get a little tougher. To all appearances, funding will still be available, but the conditions attached to it and the reporting requirements that follow it are being tightened. Perhaps no accident, this follows repeat funding requests by titans including Bank of America, Citigroup and SunTrust Bank...
21 Jan 2009
Creditors are finding it much harder to recover cash from bankrupt companies, especially those of the flag-carrying variety. The bankruptcy world has markedly changed, motivated by new U.S. bankruptcy laws, turnaround-stifling economic conditions, and the credit crunch (which makes bankruptcy financing harder to come by). All told, this has led many a flag-carrier into early bankruptcy, with cash still on the books. They do so in the hopes that amenable bankruptcy courts allow them to continue using it. Though this may seem unconventional, it’s proven otherwise and, given today’s frozen financing markets, it may seem better than the alternative, as witnessed most recently by Circuit City.
21 Jan 2009
Can a recurrence of rumor-driven collapse (a la Bear Stearns or, worse, Lehman) be prevented? With President Obama stating in his inaugural address that “without a watchful eye, the economy and the nation can spin out of control,” the question is a serious one. For evidence that a rumor mill can bring a company to its knees, one need look no further than the rubble of failed financial institutions like Lehman Brothers still quaking around us. FINRA apparently believes it can control the fallout and, like a finger-wagging grade school teacher, is stepping in with a proposed rule to tame rumor-prone public markets. However, the desire to tame these rumors runs headlong into the twin human propensities toward gossip and profit. Can FINRA win?
21 Jan 2009
This year’s proxy season looks set to be like no other. With depressed stock prices, rising hostile activity, and threats of corporate illiquidity, fireworks were already assured. However, the pyrotechnics may get even brighter, now that President Obama has boosted another proxy-season issue to the top of the nation’s agenda…
21 Jan 2009
Inauguration euphoria witnessed on Main Street didn’t exactly translate to Wall Street. However, there is a silver lining to even this week’s cloud: M&A transactions, debt issues, and even an up-tick in bankruptcy work. The following are the most important transactions and events shaping today’s business law environment. For more on each, please see Related Resources.
21 Jan 2009
Tip-toeing through minefields is an apt analogy to this year’s 10-K disclosure of your company’s credit issues. Disclosing either too much or too little has real costs. Yet credit issues are not tangential…
15 Jan 2009
Did Ponzi fever just break out, with a schemer around every corner? Or did a scandal-chastened SEC wake up to the need to appear to be doing something – anything – after the failures of Bear Stearns, Lehman Brothers, Madoff Securities, and others put the SEC's weakness into sharp light…
15 Jan 2009
Activist Shareholders: Demanding Compensation Consultant Details; Succession Plans: Back on the Agenda for 2009; Big Pharma Set to Move; Is a Shareholder’s Best Defense a Good Offense?; FINRA: Breaking the Rumor Mill…
15 Jan 2009
Has the whole world suddenly found the religion of real estate? It sure seems that way from the raft of recent Real Estate Investment Trust securities registrations, totaling over $20 billion…
15 Jan 2009
Are all shareholders after the same thing? The mantra of recent years has been “one share, one vote”, but what about no shares, entirely too many votes, and no disclosure? Boards have noticed, and taken exception to, just this sort of subterfuge among hedge funds and other activist investors…
13 Jan 2009
The Credit Default Swap (CDS) market is vast, opaque and unregulated. However, it is far from invisible and could easily have been monitored and, dare we say, interrupted. The fact that regulators did not take any action gives one pause. Not only is the CDS market worth a $55 trillion, but…
13 Jan 2009
Haven't we lived this all before? Like a Bollywood movie that joins elements of every known form of theatre, the Satyam Computer Services scandal seems to combine the worst (though most dramatic) elements of Enron, Madoff and Worldcom together…
13 Jan 2009
In looking to rescue the auto companies, how tight a set of legal screws did the government apply? Not nearly as tight as some feared. Treasury could have taken at least three possible approaches: shareholder-lite, as in TARP; rescue-finance, as in private sector workouts; or DIP (Debtor-in-Possession) finance during bankruptcy…
13 Jan 2009
Bankruptcies and strategic M&A transactions are heating up. Other issues shaping today’s business law environment include corporate fraud, new regulations, and continuing softness in the IPO market. For more on all these topics, please follow the Related Resources bar to the documents defining the business law market…
13 Jan 2009
The world’s headlines are now focused on the conflict in Israel. Only recently has news of piracy off the coast of Somalia and the war in Georgia died down. As a result, the disclosure-minded have visions of country risk disclosures dancing in their heads…
8 Jan 2009
Talk about touchy subjects for a corporation - and compensation terms, particularly for executives, are right at the top of the list. However, there’s nothing like the threat of a really harmful tax law change to open people’s minds…
8 Jan 2009
TARP double dipping is upon us, as the government indicates an ever-increasing willingness to dole out money to one and all. We've now seen 2 weaker institutions receive double dollops of government help - Citigroup and Suntrust…
8 Jan 2009
What sort of Capital Markets will we see in 2009? Hopefully more active ones than 2008. A nod in that direction may be the surprisingly active markets we’ve seen during the last 2 months of the year. Though markets are not at their…
8 Jan 2009
Land may be the one thing they’re not making more of (other than in land-filling Dubai) – but that limited supply doesn’t mean commercial real estate is a good business to be in these days. With residential real estate capturing so many headlines, commercial real estate has remained…
6 Jan 2009
Is the mother of all accounting standards about to go through big changes? Not if the SEC has its way. Mark-to-market standards, blamed for everything from the difficulties of private equity to the collapse of Lehman Brothers, have gotten more attention than…
6 Jan 2009
Companies are now being faced with unprecedented disclosure needs, driven by immense amounts of change and economic stress. We at WLB have put together a "short list" of 10 major disclosures you should consider among your own 2009 disclosures…
6 Jan 2009
The legal market’s M&A crystal ball for 2009 is unusually hazy. However, looking at certain trends and lessons from 2008 certainly helps. With such a momentous year just now behind us, it’s impossible to summarize it all...
6 Jan 2009
If sweet-sounding Tootsie Roll and iconic Callaway Golf are doing it, how bad can it be? When you’re talking about hedging transactions, the answer is far from simple. Disclosure of hedging transactions is therefore critical…