Saturday, May 5, 2012
Here's the 139 page (?!) opinion. I know, if you're like most people you have better things to do on a Spring weekend than read it, but the first few pages gives away the ending. Strine enjoined Martin Marietta from proceeding with its hostile tender offer for Vulcan after finding that when one reads the NDA together with the JDA, the two documents limit use of confidential information only to a negotiated transaction between MM and Vulcan. Strine found that MM had indeed relied on confidential evaulation material when it put together its hostile bid. Therefore, the hostile tender would be enjoined for four months.
That's a tough pill for MM, but there's a lesson here. The lesson has to do with the procedures for using and maintaining confidential evauluation materials. As we see from MM, it's hard, maybe impossible, to unring bells once they have been rung with respect to confidential information. Strine took from MM's own actions that at the time, MM believed that it could not use confidential evaluation material in putting together its hostile bid, but it did anyway. For example, there was evidence in the record that MM knew it was using confidential information (emails: "I don't think we should use this information...", board presentations, etc), but MM used it anyway.
One thing I think it suggests, if you move from a negotiated to a hostile deal, it may require an entirely clean team, including outside counsel and i-bankers for the hostile, rather than the friendly, deal. Keeping the board and c-level types from the acquirer untainted by confidential information is harder though. Board members who see a presentation with confidential evaluation material may not be able to expunge all they have seen from their minds when considering a subsequent hostile transaction.
Wednesday, May 2, 2012
Another interesting panel from the Molken Institute conference:
Leon Black, Founding Partner, Apollo Management, LP
David Bonderman, Founding Partner, TPG Capital
Jonathan Nelson, CEO and Founder, Providence Equity Partners
Jonathan Sokoloff, Managing Partner, Leonard Green & Partners
Scott Sperling, Co-President, Thomas H. Lee Partners, L.P.
Ronald Barusch at DealPolitik has an interesting theory behind Strine's lengthy delay in issuing his opinion in the Martin Marietta-Vulcan dispute. May 3 is the day. I'm convinced.
OK, back to grading exams ... yes, it's that time of year again.
Tuesday, May 1, 2012
The always interesting Annual Milken Institue Global Conference is happening now. Here is the panel on the outlook for M&A.
Anthony Armstrong, Co-head, Americas M&A, Credit Suisse
Maria Boyazny, Founder and CEO, MB Global Partners
James Casey, Co-Head of Global Debt Capital Markets, JP Morgan Securities LLC
Tilman Fertitta, Owner, Chairman and CEO, Landry's Inc.
Raymond McGuire, Global Head, Corporate & Investment Banking, Citi
Robert Harteveldt, Global Co-Head of Fixed Income and Global Head of Fixed Income Origination, Jefferies & Co. Inc.
Monday, April 30, 2012
Third Biennial Conference on Transactional Education
Preparing the Transactional Lawyer: From Doctrine to Practice
November 2 – 3, 2012
Emory University School of Law
Emory’s Center for Transactional Law and Practice is delighted to announce its third biennial conference on the teaching of transactional law and skills. The conference, entitled “Preparing the Transactional Lawyer: From Doctrine to Practice,” will be held at Emory Law, beginning at 1:00 p.m. on Friday, November 2nd and ending at 3:45 p.m. on Saturday, November 3rd. We will welcome participants at a reception at 5:00 on Friday afternoon.
The registration fee for the Conference is $179.00. It includes a pre-Conference lunch beginning at 11:30 a.m., snacks, and the reception on November 2 and breakfast, lunch, and snacks on November 3. We are planning an optional dinner for attendees on Friday evening, November 2, at an additional cost. Attendees are responsible for their own hotel accommodations and travel arrangements. Further details about registration, hotel accommodations, and other logistics will follow.
As in prior years, the proceedings of the Conference as well as the materials distributed by speakers will be recorded and published in Transactions: The Tennessee Journal of Business Law, a publication of the Clayton Center for Entrepreneurial Law of The University of Tennessee.
CALL FOR PROPOSALS: We are accepting proposals immediately, but in no event later than June 15, 2012. We welcome proposals on any subject of interest to current or potential teachers of transactional law and practice. The sessions will address the following questions:
• What do law school graduates need to know in order to become effective transactional lawyers?
• How do we best teach law students what they need to know to become effective transactional lawyers?
• How do we assess the students’ progress toward becoming effective transactional lawyers?
• What does the future of teaching transactional law and skills look like?
In addition to proposals addressing the overarching questions listed above, we hope to receive proposals that address and update topics that we have considered in past conferences, such as:
• Teaching basic and advanced contract drafting
• Teaching other critical deal skills such as client interviews, negotiation, counseling, and due diligence
• Teaching transactions in an international setting
• Teaching transactional skills in a doctrinal course
• Ethics and professionalism in transactional practice
• Transactional centers and certificates
• Preparing students for transactional practice on day one
Each session will be approximately 80 minutes long. We invite you to present your topic individually or with a panel of other participants and we encourage you to make your presentation creative and interactive. We look forward to receiving your proposals so that we can finalize the Program.
Please submit the attached proposal form electronically via the Emory Law website at http://www.law.emory.edu/transconf on or before June 15, 2012
I'd like to use this public forum to thank Justice Carolyn Berger of the Delaware Supreme Court to taking the time to visit Boston College Law School last week. Just Berger spoke to our Business & Law Society's annual dinner. It was a great talk and the students and alumni who were in attendance came away with plenty to think about.
Kara Swisher of AllThingsD has the story of how Demand Media was considering a going-private transcation, but then decided against it:
One thing was true: “Demand was definitely at the altar, but it did not get to the vows,” said one source.
Another source noted that the board also determined that Demand’s situation was improving, and that new trends are showing that the bottom might be been reached. The company reports its first-quarter earnings on May 8, which is expected to show some traction related to its many challenges.
“There is nothing [Thomas H.] Lee could do that Demand could not do for itself,” said one person. “So throwing in the towel seemed premature for now.”
Somehow it's heartening that directors looked at a going private deal and decided that they, the directors, could generate value for the public shareholders by staying public.
Kevin Murphy has been very good on executive compensation issues over the years. Now he gives us the current state of the state of executive comp in his paper, Executive Compensation: Where We Are and How We Got Here:
Abstract: In this study, I summarize the current state of executive compensation, discuss measurement and incentive issues, document recent trends in executive pay in both U.S. and international firms, and analyze the evolution of executive pay over the past century. Most recent analyses of executive compensation have focused on efficient-contracting or managerial-power rationales for pay, while ignoring or downplaying the causes and consequences of disclosure requirements, tax policies, accounting rules, legislation, and the general political climate. A major theme of this study is that government intervention has been both a response to and a major driver of time trends in executive compensation over the past century, and that any explanation for pay that ignores political factors is critically incomplete.