LATEST ANALYSIS
February 2009
26 Feb 2009
Prepackaged bankruptcy can sound mighty attractive in our financing-constrained age with few willingly venturing into the casino that is the bankruptcy process. Faced in bankruptcy’s bluff-filled world with much to lose and little cash to survive, a pre-packaged bankruptcy sounds startlingly attractive...
26 Feb 2009
It’s a wonder that board members don’t resign their positions en masse. Boards, and the committees that make them up, are facing unprecedented challenges this year and governance has seldom been tougher...
26 Feb 2009
A massive tax scandal, an IRS investigation and pursuit by multiple government agencies is creating quite a maelstrom for UBS and tarring its once pristine brand. Its money-fueled, transnational world, filled with tax-dodging-wealthy-characters gives the entire saga a James Bond air…
26 Feb 2009
As in the United States, the economic crisis in the United Kingdom has created severe distress for companies and forced some to make difficult decisions. These decisions include the possibility of bankruptcy...
26 Feb 2009
As part of the fallout of the market crisis, shareholders and regulators are scrutinizing corporate transactions checking to see if blame can be placed for a company’s woes…
26 Feb 2009
Are boardrooms suddenly thrown open to new board slates, removing current boards? With declassification on the tip of so many tongues, you might think so…
26 Feb 2009
Stressed Capital Markets -- Fresh Medicine Coming Your Way; Governance Standards: Majority Voting Amendments; Restricted Stock Units: The Non-Option Option; Restructuring Capital Structures: Intercreditor Agreements; Hostile Back and Forth: Tag, You’re It; Shuffling Executives and Board Repositioning…
24 Feb 2009
With New York Attorney General Cuomo digging into the executive compensation practices of Merrill Lynch (pre-merger), post-TARP Wall Street is now on notice that its compensation practices are a matter of quite-public record…
24 Feb 2009
The issue of separating chairman and CEO roles may be a hot proxy topic among activist shareholders again this year, as there is disagreement between interested parties over whether good corporate governance and shareholders’ interests are best served by splitting the two roles...
24 Feb 2009
Are debt exchanges really the path to salvation for companies with too much leverage, on all (or many) of the wrong terms, to boot? Just as leveraging (or over-leveraging) a company’s capital structure was all the rage during the “golden” days of private equity-led leveraged buyouts, de-leveraging through debt exchanges is in vogue today...
24 Feb 2009
Cash-starved U.K. companies are jumping on Rights Offerings as a bandwagon of choice. These refinancings are shaped both by choice-constraining debt covenants and the absence of stigma that Rights Offerings seem to suffer from in the U.S…
24 Feb 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…
24 Feb 2009
Restructuring, inside and outside of bankruptcy court, is sure to be a topic at the forefront of this season’s 10-K disclosures. With the increasing number of companies restructuring to increase operational efficiency, investors are keen to know the associated details...
19 Feb 2009
Slack filers beware: there’s a new sheriff in town and tougher filing requirements are the order of the day. Several entities are getting down to business, taking on enforcement actions against companies for failing to meet filing requirements…
19 Feb 2009
Hell hath no fury like a scorned employee (or executive…or union) – making the scorn-filled bankruptcy process particularly tough. In reorganizing during bankruptcy, at least three employment issues leap to the strategic fore: unions and their collective bargaining arrangements (CBA), executive pay-to-stay, and the prosaic (unless unless you’re the payee) continued payments to the downsized…
19 Feb 2009
How can shareholders replace under-performing boards without triggering change of control provisions? Investors frustrated by poor management may be tempted to run alternate director slates or stage all-out proxy contests but there is a downside....
19 Feb 2009
With all the talk of the financial benefits of the stimulus package, you’d almost forget it’s actually a cash-stuffed law with legal elements aplenty. With the implications to lawyers of the American Recovery and Reinvestment Act of 2009 (ARRA) being too many to enumerate, we at Westlaw Business opt to highlight a sampling of various incentives and impediments...
19 Feb 2009
There was an uptick in bankruptcy filings last year and counterparty risk has become more salient. This year’s 10-Ks will therefore need to focus not only on risks to the company itself, but also on those posed to it by third-parties, such as the potential insolvency of its suppliers or distributors…
19 Feb 2009
Incredibly Shrinking Boards; Restricted Stock Awards – Stability Over Volatility; Keeping the Creditors Happy; Passing Debt On Through Subleases; Turn Back the Clock – It’s Backdating Time Again?...
17 Feb 2009
This week saw an unfortunate uptick in bankruptcy filings. However, there is a silver lining to this cloud. The upside this week includes a $280 million "stalking-horse" bid in a Section 363 asset sale...
17 Feb 2009
Comprehensive health coverage is building up to be a hot proxy topic this year. A major focus last year, health coverage may be even more so this year because it is threatened by the slower economy…
17 Feb 2009
Investor relations and governance experts: Better corporate governance and big cost savings are but a keystroke away, to believe e-proxy fans. The SEC is one of the biggest proponents, with its desire to improve shareholder communications and overall governance…
17 Feb 2009
How do you stop an overly amorous acquiror in an age of cheap stock prices and heightened hostile activity? Even poison pills and staggered boards are far from foolproof, begging other, more expensive, measures to be adopted following the launch of a bid...
17 Feb 2009
With shades of Merrill’s traumatic pre-merger mark-to-market, the U.K. is now experiencing the sequel. Like Hollywood recycling a better-made movie from another country, Lloyds seems to have done the same, only this time using the Bank of America/Merrill Lynch script…
17 Feb 2009
Intellectual property (IP) has long been a major differentiating factor – but is now being eroded both by legal change and business pressures. Long viewing IP rights as legal protection of them as agents of change, innovators are now facing change of a less-desired variety, impacting everyone from finance to retail and technology...
12 Feb 2009
Beyond the suffering of investors, battered equity prices lead to trouble. Not only are they egg on the CEO’s face, but the resultant low market cap subjects public companies to significant costs ranging from more expensive access to capital markets to de-listing from exchanges. Companies should be aware of market cap and price-per-share triggers and take steps to bolster share prices…
12 Feb 2009
Many companies use mergers and acquisitions as a growth strategy. The upcoming year will require disclosure of some of the challenges firms have recently faced in carrying out this strategy in light of current economic conditions…
12 Feb 2009
Corporate Political Contributions: Who’s Getting What?;Tax Gross-Ups: High End Retail in Tough Times;Labor Unions & Bankruptcy Concessions; SPACs: Searching for the Right Combination; How Healthy is Fast Food?...
12 Feb 2009
Landlords of bankrupt tenants are now learning what many sports fans already knew – the best defense is a good offense…at least when it comes to commercial leases. The holiday shopping season has been over for more than a month now and as we assess the damage of less than stellar sales figures…
12 Feb 2009
To Dorothy Corp., there’s no place like home – in Bismark. North Dakota has it all: the Great Plains, snow, and the Lawrence Welk museum. What more could an activist shareholder ask for? Back in mid-2007, driven in part by mega-investor Carl Icahn, North Dakota revised its corporate governance laws to include provisions that…
12 Feb 2009
Hedge Funds do the darndest things – especially when facing massive redemptions and threatened collapse. With public markets a possible avenue to raise more capital and provide for investor exit, that option might seem quite attractive to a fund otherwise having a hard time staunching the bleeding…
10 Feb 2009
Tough financing markets have left no area of M&A unscathed, least of all the financial service sector, where it all began. Deal terms are being carefully structured. These days, it's all about the money, which has proven itself in an all-too-short supply…
10 Feb 2009
This week brought another round of significant legal events that will shape the business law environment. The IPO has returned, at least for the time being. Could it be here to stay? While several major companies filed for bankruptcy…
10 Feb 2009
Amid the public and regulatory scrutiny of corporate expenditures, executive perquisites (or in some cases, the lack thereof) are a hot topic this year. Companies will be disclosing everything from the payments of country club dues, to…
10 Feb 2009
Credit rating agencies (CRAs) are back in the hot seat, with the temperature jointly cranked by hot-off-the-press regulations and warming U.S. debt markets. In truth, they never really left this position – a growing list of…
10 Feb 2009
The environment has been a political focus and increasingly at the forefront of people’s thinking since the 1960s. But, unlike the hula-hoop, environmental issues are a fad turned serious business – and are here to stay…
10 Feb 2009
Disclosures to the SEC are about to undergo a major shakeup, and it's high time for company lawyers and leaders to update their reporting strategies. With the release of the SEC's final rules last week, the age of XBRL is now officially upon us. Due to the…
5 Feb 2009
The financial storm has left many company stock prices under, exposing them to hostile acquirors, lovingly referred to as “sharks” swimming around them. To repel these sharks, boards are turning to defensive mechanisms…
5 Feb 2009
Companies have always included securities in their portfolios, but with the tumultuous market conditions of recent months, disclosure could be a more delicate task than usual. This year, companies will be disclosing a litany of risky holdings, including credit default swaps (CDS)…
5 Feb 2009
Executive compensation is almost too hot to touch…yet companies have to figure out both whether to curb it and how to disclose it. It has become such a hot issue that that the Feds are stepping in (or maybe stepping on) to quash the practice…
5 Feb 2009
Do acquirors obtain a “put option” on mergers they have committed to? Dow Chemicals certainly thinks so, in walking away from Rohm and Haas, but Rohm and Haas strenuously disagrees and has sued Dow. Rohm & Haas might think its case is airtight, but bitter experience has taught that it is anything but…
5 Feb 2009
Hostile Activity: Pharma Board Battle; Employment Agreement: NCR’s Newest Board Member; Shareholder Proposal: Say On Pay; Unsure Footing Ahead for Shoemaker; PE On the Up?...
3 Feb 2009
Clawbacks of bonuses and long-term incentive pay are hot issues this year. Many companies are disclosing their executive clawback provisions, driven by poor economic conditions and government bailout requirements, among other things...
3 Feb 2009
Have the opportunities in the legal market promised by TARP ended? Not by a longshot. TARP’s explicit components continue to unfold, including initial securities investments and subsequent equity offerings. Along with these, it seems set to…
3 Feb 2009
Any company relying on energy (i.e., every company) must consider how to disclose its dependency. This is a wider group than you might think, touching companies from airlines to yacht manufacturers. Even the green world has an energy issue. If nothing else…
3 Feb 2009
Disclosure standards may just have increased, thanks to recent incidents involving GM, Apple and Bank of America. All household names, these companies are being taken to task for alleged failures to disclose major issues. The upshot? The professional’s craft of…
3 Feb 2009
The last week has seen a redoubling of M&A activity and a tailing off of bankruptcy filings, which may be viewed as positive developments. The pharmaceutical industry, no doubted spurred into action by last week’s announcement of the massive merger between Pfizer and Wyeth, was particularly active…
3 Feb 2009
With tech M&A continuing to unfold in the technology industry, how are today’s heavy risks being allocated? This is worth considering, as M&A in the tech sector continues at a rate that is none too shabby (relative to today’s world). The key is how…