Expert Analysis

• Investors With ESG Aims Should Heed Antitrust Reporting Rules

  

  As investors globally are embracing environmental, social and governance investing, regulatory agencies have made clear that ESG initiatives are not immune from antitrust scrutiny, and investors cannot count on receiving special exemptions from the Hart-Scott-Rodino Act reporting requirements, say Jonathan Gleklen and Francesca Pisano at Arnold & Porter.

• US Antitrust Approach Toward ESG Clashes With EU Stance

  

  A comparison between how EU and U.S. antitrust enforcers have approached companies' cooperative environmental, social and corporate governance efforts highlights America's comparatively harsh stance, contributing to a difficult compliance climate for international businesses, say attorneys at Steptoe & Johnson.

• When Investment Banks Can Sell Real Estate In Calif.

  

  When investment banks sell businesses that own property in California, they may run into trouble if they are not licensed real estate brokers, unless the property is merely incidental to the deal at hand, say attorneys at Holland & Knight.

• Merger Guidelines' Broad Tack Ignores Recent Precedent

  

  The U.S. Justice Department and Federal Trade Commission's new proposed merger guidelines are consistent with the Biden administration's expansive approach to antitrust enforcement, but they fail to grapple meaningfully with much of modern economic precedent and court decisions requiring greater agency rigor in merger analysis, say attorneys at Freshfields.

• Ch. 11 Ruling Informs On Social Media Ownership Rights

  

  Social media users now have useful guidance regarding account ownership rights following a federal bankruptcy court's recent ruling in the Vital Pharmaceuticals Chapter 11 case, which rejected the notion that advertised content alone could create a presumption of ownership for the advertised business, say Deborah Enea and Thomas Dockery at Troutman Pepper.

• Parsing FTC's Intercontinental-Black Knight Merger Challenge

  

  The Federal Trade Commission's recent Article III case challenging a merger between Intercontinental Exchange and Black Knight suggests the agency is using a structuralist approach to evaluate the merger's potential anti-competitive harm, says David Evans at Kelley Drye.

• Perspectives

  Mallory Gives Plaintiffs A Better Shot At Justice

  

  Critics of the U.S. Supreme Court's recent decision in Mallory v. Norfolk Southern claim it opens the door to litigation tourism, but the ruling simply gives plaintiffs more options — enabling them to seek justice against major corporations in the best possible court, say Rayna Kessler and Ethan Seidenberg at Robins Kaplan.

• FERC Order Affirms Increased Scrutiny Of Investor-Utility Ties

  

  A recent Federal Energy Regulatory Commission order confirming more aggressive scrutiny of investors' exercise of control over public utilities through representation on their boards or the boards of companies holding interests in them means that both investors and utilities face significantly heightened compliance obligations, say attorneys at Akin.

• Effectual Relief Questions Linger After Section 363 Ruling

  

  In the months since the U.S. Supreme Court's ruling in MOAC Mall Holdings, courts and practitioners must grapple with the issue of what effectual relief courts may grant upon an appeal of an unstayed sale order, says Monique Jewett-Brewster at Hopkins Carley.

• CFIUS Clampdown Will Deter Allied-Country Investment

  

  The Committee on Foreign Investment in the United States’ recent redefinition of transaction "completion date" is the latest in a series of steps taken in the name of U.S. security that are likely to deter investments from friendly countries and increase capital costs for U.S. startups, says Stephen Heifetz at Wilson Sonsini.

• Important Generative AI Considerations In M&A

  

  The recent surge of interest in generative artificial intelligence and its use of machine learning algorithms means there are novel concerns as well as inherent risks for those engaging in M&A activity, and acquirers should pay careful attention to a target’s scope of ownership and licensing rights, say attorneys at Davis Polk.

• Courts Can Overturn Deficient State Regulations, Too

  

  While suits challenging federal regulations have become commonplace, such cases against state agencies are virtually nonexistent, but many states have provisions that allow litigants to bring suit for regulations with inadequate cost-benefit analyses, says Reeve Bull at the Virginia Office of Regulatory Management.

• 'Entire Fairness' Takeaways From Tesla-SolarCity Ruling

  

  In its recent decision affirming dismissal of stockholder claims against Elon Musk in connection with Tesla's $2.6 billion acquisition of SolarCity, the Delaware Supreme Court indicated how an entire fairness analysis is best presented, say attorneys at Fried Frank.

• Tales From The Trenches Of Remote Depositions

  

  As practitioners continue to conduct depositions remotely in the post-pandemic world, these virtual environments are rife with opportunities for improper behavior such as witness coaching, scripted testimony and a general lack of civility — but there are methods to prevent and combat these behaviors, say Jennifer Gibbs and Bennett Moss at Zelle.

• A Practical Solution To Life Sciences Joint Venture Disputes

  

  In light of recent developments that threaten to increase friction between life sciences companies, industry participants should consider implementing dispute advisory boards as a method of resolving common joint venture hiccups without requiring litigation or mediation, says Scott Bass at Sidley.