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LAWS6997-Laws6997 cross border deals代写
时间：2023-03-25
LAWS6997
CROSS BORDER DEALS
Semester One, 2023
Reading Guide
THE UNIVERSITY OF SYDNEY LAW SCHOOL
sydney.edu.au/law
Page 1
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This document contains unit of study specific information. It must be read in
conjunction with the Sydney Curriculum Unit of Study Outline, the Canvas site for
your unit of study and Law Student Portal. Students should also ensure they
consult the University website for up to date policy information.
The Student Portal page is intended to direct you to relevant resources for your course (LLB,
JD or PG), answer frequently asked questions from currently enrolled students and to direct
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consult the University of Sydney Law School or University website for detailed information.
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Lecturer name and contact details
Title/Name Ronald Barusch
Email rbarusch@gmail.com
Preferred method of communication
The best way to reach me is by email (rbarusch@gmail.com). I would be happy to arrange a
mutually convenient time to meet or have a telephone or Zoom conference with you if you email
me to request such a meeting. I will be physically present at the Law School from 16 March
through 4 April (Please use my Gmail email address as I do not regularly check any University
email.)
With regards to correspondence with academic staff, students should remember to provide their
student identification number, especially when sending emails. N.B. Email communication
should be via your Sydney University email account.
Please note: as per our University policy, the official channel of communication is your official
university email, not the Canvas inbox.
Although Canvas includes a messaging function via this Inbox feature, we strongly recommend
that all communication with teachers and peers remains through your university email and
inbox." (Student Canvas Guide, Navigation, Inbox).
Important notes on the reading:
1. There is a substantial amount of assigned reading to be completed prior to the
first lecture on 24 March. In addition, there will be a lot of reading throughout this
course and some of it you may find heavy going. The reason for this is that we will cover
a large portion of what would be covered in a traditional U.S. Securities Regulation class
and a U.S. M&A class, PLUS we will go into depth on many practical issues arising on
cross-border transactions as well as looking at how some of these issues are treated in
other jurisdictions. This will manifest itself particularly in the reading to be completed
prior to our first class on Friday, 24 March. I urge you not to wait until the last minute
before the class to read this material. It consists, among other things, of hundreds of
pages from the Textbook, which is quite dense and will likely have concepts which are
new to you. Although there is lots of reading for the other classes as well, once you
conquer this mountain, I think you will find the remaining reading more manageable.
Because of the nature and length of the reading for the first class, please obtain the
Textbook as soon as you reasonably can. See below on ordering the Textbook from the
publisher or amazon.com.au. It appears that the ebook from the publisher is
substantially cheaper and the publisher has advised me that by using the LAW10 promo
code will get you 10% off.
2. In my view, it is critically important to complete the reading assignments before the
applicable lecture. Not only will I assume that the material has been read, but, given the
nature of the topics and the concepts addressed, you will get a lot more out of my
lectures and our discussions if you are well prepared. Also, there is material in the
reading that may not be discussed in class unless you ask about it.
3. Some good news: The “Problems” in the Textbook, even if included in pages assigned,
are NOT assigned unless specifically referenced in a note on Canvas or emailed to you.
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4. Some common sense needs to be applied in doing the reading in the Textbook and
assigned rules. Remember that the basic objective of this course is to help you identify
and understand cross-border issues, be creative in their solution, understand why a
foreign lawyer’s perspective may be different than yours, and at times be able to push
back on a U.S. lawyer who says that a particular issue always must be handled a certain
way. It is not to have you memorize all of the finer points of detailed regulations. Many
of the readings go into the detailed requirements because I want you to be able to
understand those concepts as well as being able to identify and discuss issues, but not
necessarily to memorize them.
5. I recommend you NOT automatically print the entire contents of all of the various
links provided below (and on Canvas). Some sample disclosure and other documents
are included which are quite long but only a small portion (or none - the document only
being included for reference) of which may be assigned for reading. Note also that I
have included links to a number of Delaware cases and other material under “Other
Useful Materials” below which might be helpful to refer to (or could be a place to dive
deeper once you have mastered the required reading) but are not assigned. Some of
the readings which are assigned are only small portions of the document which is linked
so be sure to look at the assignment to be sure you are only reading what is assigned
(unless you want to read more).
There is a separate memorandum (available on Canvas) on, among other things, the
assessments, including the final written assignment, the online discussion forums and
participation. Please carefully review it and watch Canvas for updates.
Reading materials
Required reading
Required textbook
All students should purchase the following book:
Coffee, Sale and Whitehead, Securities Regulation: Cases and Materials, Fourteenth Edition
(Foundation Press 2021) (ISBN 978-1647087753)) (the “Textbook”) (but see below on a
possibly cheaper way to purchase it).
Obtaining the book
The textbook is available at the publisher’s website in ebook form (which is cheaper than the
print version) and the print version is available at amazon.com.au. (Note that you want to
purchase the 14th edition.) The publisher has advised me that by using the LAW10 promo
code will get you 10% off if you purchase the ebook version on the publisher’s website. There
is a significant amount of reading in them which should be completed prior to the first lecture
on 24 March. Please be sure to allow sufficient time to allow for timely delivery to prepare for
class, particularly if you order the print version.
Because of the magnitude of the assigned reading, you are strongly urged to buy the Textbook.
However, I have been advised that a copy of the print version of the Textbook will be available
on short loan at the Law Library.
In past years I have recommended the purchase of the accompanying rules pamphlet that have
certain U.S. Federal statutes and Securities and Exchange Commission regulations. However,
that was largely to have a ready reference in class. I think a printed copy of the rules pamphlet
is less necessary since all of the laws and regulations we will read are online and there are
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links in the assignments below to them. If you do want to purchase the rules pamphlet you can
find it here.
In the M&A portion of the class we will be referring to certain sections of the Delaware General
Corporation Law (the “DGCL”). An online version of the DGCL can be found at
http://delcode.delaware.gov/title8/c001/ . Links to specific sections are included with the
assigned reading below.
For certain non-U.S. cross-border comparative information, it may be convenient to refer to this
web site: https://iclg.com/practice-areas/mergers-and-acquisitions-laws-and-regulations.
From time to time some information on the jurisdictions available on that site may be assigned.
Any readings on this web site will be from material available in front of the pay wall. There is
no need to purchase the print version of this book.
The remainder of the reading is available via the links indicated below. If you find difficulties
clicking through any assigned reading, please email me as soon as you discover it. You should
expect further material or links to be posted from time to time on the Canvas site.
Other required reading
Links to other required reading and page numbers of the Textbook which are assigned are
included below.
Lecture schedule and reading list
Reading Assignments1
Please watch Canvas for possible modifications and
additions to these readings, including reading
assignments for guest lectures.
I. 24 March Class
A. INTRODUCTORY MATERIAL:
1. A Few Examples
a. What happens when Section 5 of the Securities Act of 1933
is violated? (Much more on Section 5 below –it is largely the
basis for the first half of the course.):
1 The order of discussion (and therefore readings) is subject to change. In addition, the reading
assignments are likely to be updated from time to time both because of developments and discussions
in class. Changes will be announced in class and/or on Canvas. The bolded items are of particular
significance and merit a more careful review.
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i. Barclays to Book $591 Million Loss Due to
Debt-Sale Snafu
ii. Debt-Sale Debacle at Barclays Was Bigger
Than First Thought
iii. Matt Levine, “Oops” (pp1-5 of the PDF)
iv. The Impact: Barclays Agrees to a $361 Million
Settlement to Resolve SEC Charges Relating
to Over-Issuances of Securities
b. Dealpolitik--David Jones Deal Highlights Power of
Shareholders in Australia
c. Dealpolitik--Could U.S. Law Have Averted David Jones
Pain? (a different David Jones incident)
d. Dealpolitik--Who Needs “Truth in Takeovers”? Not the U.S.
e. Dealpolitik--Alibaba’s Structure v. Dual Class — the Bottom
Line
f. Dealpolitik: Will the War at Viacom Threaten the Super-
Voting Stock?
g. Dealpolitik--James Hardie Case Highlights Better Treatment
of U.S. Directors
h. Davidoff, The Hurdles Ahead for a Cooper Tire Deal
i. China Culture Crash
ii. Optional: 8 years later…Cooper Tire and
Goodyear Merger Announcement (2021/2/22)
i. Davidoff, “Tasting the Difference in a Cross-Border Deal,”
j. Moneybeat-The Perils of Trans-Atlantic Mergers
k. Dealpolitik: Mylan to Investors: We’ll Do What We Want
l. Dealpolitik: Did Mylan Stockholders Know Enough When
They Approved Its Inversion?
m. Dealpolitik: Delaware Ruling May Complicate Management
Buyouts
n. Activism 101: Read Corporate Bylaws — Dealpolitik
o. Expecting a Sweet Deal for Hershey? You May be
Disappointed — Dealpolitik
a. Optional: Mondelez abandons pursuit of U.S. chocolate
maker Hershey (2016-8-29)
p. The Year of the SPAC (2021-1-26)
a. SPAC Boom Ends in Frenzy of Liquidation - WSJ (2022-
12-25)
b. AFR 2/15/21 First Aussie-focused SPAC hunts the ‘next
Atlassian’
i. APAC-focused SPAC Catcha Investment 2.0
withdraws $250 million IPO
2. U.S. Federal vs. State Regulation of Some Fundamental M&A Issues
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a. Santa Fe Industries v. Green, Textbook pp. 1037-1043
c. Weinberger v. UOP (Parts II(B), II(C), II(D) and III only)
d. Kahn v. M&F Worldwide Corp. case note
e. Dealpolitik: CBS Directors Play a Subtle Game in Viacom
Battle
f. Sections 251(a)-(c), (h), 253(a), 259(a) and 262 (a)-(b)of the
Delaware General Corporation Law (the “DGCL”),
g. Rule 10b-5 under the Securities Exchange Act of 1934, as
amended (the “1934 Act”)
h. CTS v. Dynamics Corp. of America (and subsequent note),
Textbook 880-891
3. Delaware Supreme Court Says ‘Quasi-California Corporation’
Statute, Violates U.S. Constitution”
4. Davidoff, “In Corporate Disclosure, a Murky Definition of Material”
5. Dealpolitik: Don’t Count Out Delaware
6. Some Unusual Aspects of U.S. Litigation
a. Seventh Amendment to the U.S. Constitution
b. Dealpolitik: Is a Whopping Legal Fee a Marketing Pitch by a
Delaware Court?
c. Dealpolitik: More Evidence of Broken Shareholder Litigation
System
d. Optional: In re Walgreen Co. Stockholder Litigation (Judge
Posner’s August 2016 opinion on a disclosure-only settlement
labelling it a racket)
e. In re Trulia, Inc. case note
7. Wachtell, Lipton, Takeover Law and Practice (2022), pp. 8-10
(Shareholder Litigation) and pp. 10-19 (Shareholder Activism and
Engagement)
8. Basic Inc. v. Levinson, Textbook pp.1061-1068 (note particularly
the materiality standard of TSC Industries, Inc. v. Northway, Inc.
(discussed on p. 1063) and footnote 17)
9. Note on Materiality, Textbook pp. 1177-1182
10. Baker McKenzie, In the Know: 144A vs Reg S only--
Considerations in high-yield offerings
11. Introduction to U.S. Securities Laws Applicable to Offerings
a. Sections 2(a)(3), 2(a)(10), 2 (a)(11), 4(a)(1), 4(a)(2), 5,
11, 12 and 17(a) of the Securities Act of 1933, as
amended (the ‘1933 Act”)2
2 Securities lawyers almost always cite the 1933 Act, the 1934 Act and other U.S. securities laws
by the section numbers in the original statutes (adopted almost 90 years ago). Indeed, the SEC rule
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b. Textbook pp. 523-593
c. Optional: Textbook pp. 50-583, 67-924
12. For reference, but not assigned: Complete U.S Constitution
B. Offerings of Securities in the U.S.:
1. Textbook pp. 93-151 (Basic U.S. structure of securities offerings and
the JOBS Act)
2. Groupon gun-jumping issue
a. Davidoff, “In a Quiet Period, Groupon Feels the Noise”
b. Groupon SEC Comment Response 9-2-2011 (Comment #4)
c. Groupon SEC Comment Response 9-16-2011 (pp1-9)
3. Textbook pp.177-189 (after reading this jump ahead to read this article:
SEC Scrutiny Blocks Some Crypto Firms From Going Public), 208-216,
2022 Update on MD&A from Textbook Authors (2022-8-8), 220-225,
258-269, Optional: 153-174 (Registration Process)
4. Textbook pp. 326-332 (Sale of Business Doctrine)
5. Textbook pp. 373-399 (Private Placements)
a. Optional (for a bit of a chuckle on the concept of “accreditor
investor” and private placements (though a serious view by much
of the practicing bar)): Levine, “Certificate of Dumb Investment”
(the second section in this link, pp 5-7 of the PDF) (2023-2-7)
6. Textbook pp. 405-436 (Regulation D); Optional: Textbook pp.501-507
(Crowdfunding), pp. 436-444 (Regulation A+)
7. Preliminary Note (Rule 500) to Regulation D, Rules 501, 502(a), (b)(1),
(c), and (d), 506, 507 and 508 of Regulation D under the 1933
numbers for rules adopted under the 1934 Act and certain other statutes use those references (e.g.
Rule 10b-5). However, U.S. statutes have been compiled into a series of titles of what has been named
the “United States Code” with entirely different section numbers. Therefore, when you click on the links
of statutory references assigned here, you are directed to the U.S.C. and sections 2, 4, 5, 11, 12 and 17
of the 1933 Act become 15 USC Sections 77b, 77d, 77e, 77k, 77l, and 77q, respectively. Remember
we will be referring to these provisions as sections of the original statute (and that is what the assigned
section numbers refer to (even though they link to the applicable section number in the U.S.C.)). The
words of the statutory sections are the same.
3 In connection with U.S. Federal securities regulation, our focus will be on portions of the 1933
Act and the 1934 Act and related rules. It is helpful to have the overview of the regulatory system
provided by this brief passage, but in general it is not necessary to retain in depth knowledge of other
statutes.
4 As you read the description of the U.S. underwriting process (and all of the material for this
course), you should be asking yourself how this process differs with that in Australia (or your home
country) and whether there could there be regulatory or practical issues arising from these differences.
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8. Form D5 under the 1933 Act,
9. Textbook pp. 600- (Rule 144A and Regulation S)
10. Rule 144A under the 1933 Act
11. Regulation S under the 1933 Act
12. Optional: Textbook pp. 745-758 (Reg M, free riding, spinning)
13. Textbook pp. 919-970, 976-1037, 1112-1122, 1139 (from last
paragraph)-1143 (Civil Liabilities, including Escott v. BarChris,
WorldCom, Basic v. Levinson (assigned above), Ernst & Ernst v.
Hochfelder, the Due Diligence Defense, Gustafson v. Alloyd and The
Fraud on the Market Theory)
a. Optional: Halliburton v Erica P. John Fund, Textbook pp.1128-
1140
14. Will Cryptocurrency be regulated as securities?
a. SEC Chairman Gary Gensler speech on regulating
cryptocurrency as securities (2022-9-8)
b. Inside a Crypto Nemesis’ Campaign to Rein In the Industry
(2021-11-21)
c. Latest SEC Lawsuit Shows Crypto’s Troubles Might Not Be
Contained To FTX (2022-12-22)
d. How Crypto’s Meltdown Changed the Regulatory Debate (2023-
1-8)
e. SEC Sues Crypto Firms Genesis and Gemini Over Lending
Product (2023-1-12)
f. SEC Scrutiny Blocks Some Crypto Firms From Going Public
(2023-1-24)
g. Wachtell: SEC Halts Cryptoasset “Staking-As-A-Service”
Program Amidst Tightening Regulatory Enforcement
Environment (2023-2-13)
h. Levine, Central Crypto (2023-2-13) (pp. 1-8 of the PDF)
i. Optional: Contrary Position: Why Cryptoassets Are Not
Securities (2022-12-6)
II. 25 March Class: Issues Arising in Cross-Border Financings
1. Review: “The Liability Provisions of the Securities Act and Exchange Act,”
Wachtell, Lipton, Cross-Border M&A Guide (pp.71-81 only)
5 This form is assigned just familiarize yourself with the nature of the information required (and
why people might not want to file it). The instructions to the form are not assigned.
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2. Rio Tinto Registered Debt Offering Prospectus—only the following pages: In
the supplement: pp. S-1 (cover of supplement) through S-4, S-8 through S-14
(Risk Factors), S-25 through S-28. Base Prospectus: Cover, pp. 1, 46-48
3. Australian Law Exhibit 5 opinion for a debt offering
4. US Law Exhibit 5 opinion for a debt offering
5. Sample US 10b-5 letter
6. Australian Tax opinion
7. Note that the Rio Tinto underwriting agreement can be found here. It does not
need to be read for detail, but should be reviewed to understand the structure of
a U.S. underwriting.
8. Brambles 144A Offering Memorandum—only the following pages: Cover, i-v, 22-
33, 150-162
9. PLI, “Big Boy Letter
10. AS (Auditing Standard) 6101 issued by the Public Company Accounting
Oversight Board (PCAOB) : Letters for Underwriters and Certain Other
Requesting Parties (also known as Cold Comfort Letters)--only the following:
Example A, Example F
11. Valemus Limited Wrap for a Rule 144A offering—only cover of wrap to p.29 of
wrap
12. U.S. Law firm's due diligence training memo
13. Tips for Drafting Rule 144A or Reg S Indenture
14. Morrison v. NAB and its aftermath, Textbook pp. 1475-1503
15. SEC to Permit All Issuers to Submit Confidential Draft Registration Statements
16. Eurobond Offerings-- Excerpts from Fuller, Law and Practice of International
Capital Markets, 2012 (pp. 231-268)
17. Dealpolitik: Honeywell Pushes Envelope on Deal Disclosure
18. The Growth of Collective Shareholder Actions in Europe
19. Optional: Capital Markets:UK
20. Optional: EU Prospectus Directive
21. Optional: Slaughter and May, Brexit and the Capital Markets – does equivalence
need to be mutual?
22. Optional: Doing Business in Japan: Securities Offerings
23. Not assigned but you may want to review: BHP Debt Registration 16 Nov 2011
III. 31 March Class: Fundamentals of U.S. M&A:
1. Delaware General Corporation Law Sections 141(a), (d), (e) and (k)(1) and
102(b)(7)
2. Folk on the Delaware General Corporation Law, 141.02[A][1]-141.02[A][3][a]
(pp1-6 of the PDF), 141.02[B][1]-[B][3][a] (pp.33-37 pf the PDF) 141.02[E][1]-
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141.02[E][1][b] (pp 76-79 of the PDF), 141.02[F][1][a]-141.02[F][2][c] (pp. 100-
111 of the PDF) (Fiduciary duty of directors and the business judgment rule)
3. Folk on the Delaware General Corporation Law 151.05[A]-[B] (pp1-2 of the
PDF) (Controlling stockholders’ fiduciary duties)
4. Wachtell, Lipton, Takeover Law and Practice (2022), pp. 23-85 and 103-
173. Optional: pp.85-101
5. Optional: 1934 Act statutory sections relevant to takeovers (the “Williams Act”)
a. Sections 13(d), 13(e), 13(f),
b. Sections 14(a), 14(c), 14(d) and 14(e)
6. Rule 3b-4(c)
7. 12g3-2(a) and 12g3-2(b) of the 1934 Act.
8. Selected rules from Regulations 13D-G, 14D and 14E
a. Regulation 13D-G
i. § 240.13d-1 Filing of Schedules 13D and 13G.
ii. § 240.13d-2 Filing of amendments to Schedules 13D or 13G.
iii. § 240.13d-3(a)-(d)(1) Determination of beneficial owner.
(remainder of rule is optional)
iv. § 240.13d-4 Disclaimer of beneficial ownership.
v. Optional: § 240.13d-5 Acquisition of securities.
vi. Optional: § 240.13d-6 Exemption of certain acquisitions.
vii. Optional: § 240.13d-7 Dissemination.
viii. Optional: § 240.13d-101 Schedule 13D - Information to be
included in statements filed pursuant to § 240.13d-1(a) and
amendments thereto filed pursuant to § 240.13d-2(a).
ix. Optional: § 240.13d-102 Schedule 13G - Information to be
included in statements filed pursuant to § 240.13d-1(b), (c),
and (d) and amendments thereto filed pursuant to § 240.13d-
2.
b. SEC Proposes Changes to Beneficial Ownership Reporting
i. Optional: Wachtell Comment Letter (2022-4-11) on Expanding
Beneficial Ownership Reporting
c. Regulation 14D
i. § 240.14d-1(a), (c)-(f) Scope of and definitions applicable to
Regulations 14D and 14E. (remainder of rule is optional)
ii. Optional: § 240.14d-2 Commencement of a tender offer.
iii. Optional: § 240.14d-3 Filing and transmission of tender offer
statement.
iv. Optional: § 240.14d-4 Dissemination of tender offers to security
holders.
v. Optional: § 240.14d-5 Dissemination of certain tender offers by
the use of stockholder lists and security position listings.
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vi. Optional: § 240.14d-6 Disclosure of tender offer information to
security holders.
vii. § 240.14d-7 Additional withdrawal rights.
viii. § 240.14d-8 Exemption from statutory pro rata requirements.
ix. § 240.14d-9 Recommendation or solicitation by the subject
company and others.
x. § 240.14d-10(a) Equal treatment of security holders.
(remainder of rule is optional)
xi. Optional: § 240.14d-11 Subsequent offering period.
xii. Optional: § 240.14d-100 Schedule TO. Tender offer statement
under section 14(d)(1) or 13(e)(1) of the Securities Exchange
Act of 1934.
xiii. Optional: § 240.14d-101 Schedule 14D-9.
d. Regulation 14E
i. Section 14(e) of the 1934 Act
ii. § 240.14e-1 Unlawful tender offer practices.
iii. § 240.14e-2 Position of subject company with respect to a
tender offer.
iv. Optional: § 240.14e-3(a) Transactions in securities on the
basis of material, nonpublic information in the context of
tender offers. (remainder of rule is optional)
v. Optional: § 240.14e-4 Prohibited transactions in connection
with partial tender offers.
vi. Optional: § 240.14e-5 Prohibiting purchases outside of a
tender offer.
vii. § 240.14e-8 Prohibited conduct in connection with pre-
commencement communications.
9. Optional: Regulation M-A (contents of required disclosure)
10. Textbook, pp. 791-908 (Tender Offers)
11. Textbook, pp. 475-497, and Section 3(a)(9), Rule 145, Rule 802 and
Section 3(a)(10) under the 1933 Act
12. Summary of Sandridge Energy, Inc. Stockholder Rights Plan (Poison
Pill) adopted November 26, 2017 (Item 3.03 of this Form 8-K)
13. Stockholder Rights Agreement dated November 26, 2017 of Sandridge
Energy, Inc. (Take a quick look at what largely is a typical poison pill to
get a general sense of the structure of the document that creates a pill
and focus on the following particular provisions: Definitions (Section 1)
of “Acquiring Person,” “Beneficial Owner,” and “Qualifying Offer” (not all
poison pills have Qualifying Offer provisions), Section 7(e) (cancellation
of Acquiring Person’s rights), Section 11(a)(ii) (the “Flip-In”), Section 27
(Supplements and Amendments))
14. An example of U.S. M&A twists and turns (Talbots):
a. Schedule 13D (Item 4. Purpose of Transaction) filed by Sycamore
Partners with respect to Talbots
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b. Dealpolitik—Talbots
c. Amendment No. 1 to Schedule 13D filed by Sycamore Partners with
respect to Talbots
d. Letter to Sycamore Partners included in Form 8-K of Talbots (rejecting
Sycamore offer)
e. Talbots Press release announcing rejection of Sycamore Partners offer
f. Talbots Settles for Less from Sycamore
15. The Airgas case and the vindication of the poison pill (and how your
Lecturer got it very wrong!)
a. Air Products v. Airgas (Delaware Chancery Decision) pp.1-11 and
pp.77-153
b. Dealpolitik--Delaware Corporate Law Becomes Absurd
c. Dealpolitik: Airgas Deal Vindicates Poison Pill
16. Dealpolitik--Conagra all but Surrenders to Bulletproof Defense
17. Dealpolitik--The J Crew Buyout--Doing Everything Wrong
18. Dealpolitik--M&A 101:
1. Part 1
2. Part 2
3. Part 3
4. Part 4
19. Dealpolitik--The Useful Corruption of Shareholder Lawsuits
20. Dealpolitik: Is Delaware Law Rigged Against the Small Shareholder?
21. Dell, T. Rowe Price Settle Buyout Lawsuit for $25 Million
22. Delaware Supreme Court Reverses Dell Appraisal Decision, Urging
Reliance on Deal Price
23. Dealpolitik: ETE-Williams Shows Need for Tax (Opinion) Reform
24. Activist Investors’ Secret Ally: Big Mutual Funds
25. Altice IPO and the Best Activism Defense — Dealpolitik
26. Dealpolitik: Social Studies — Lesson from Anthem-Cigna Meltdown
27. Kahn v. M&F Worldwide Corp: Delaware Supreme Court Affirms In Re
MFW Court of Chancery Ruling that Business Judgment Review Can
Apply to Squeeze-Out Mergers Conditioned Up Front on Both Approval
by Special Committee and Majority-of-the-Minority Vote (repeated from
introductory lecture readings)
28. Corwin v. KKR Financial Holdings LLC: Delaware Supreme Court Affirms
That an Uncoerced and Fully Informed Disinterested Stockholder Vote
Reduces the Standard of Review in a Merger Without a Controlling
Stockholder to Business Judgment
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IV. 1 April Class: Some Examples; Cross Border Issues Arising out of Takeovers
1. Twitter, Musk and Civilization in 2022
a. Musk’s Initial 13G Filing 2022-4-4
b. Protocol, Elon Musk didn't follow the rules when he bought his
Twitter stake 2022-4-5
c. Letter from SEC to Musk 2022-4-4 (made public by SEC 2022-5-
27)
d. Elon Musk to Join Twitter’s Board of Directors After Becoming
Largest Shareholder 2022-4-5
e. Elon Musk Decides Not to Join Twitter’s Board 2022-4-11
f. Elon Musk Makes $43 Billion Bid for Twitter, Says ‘Civilization’ At
Stake 2022-4-14
g. Twitter Adopts Poison Pill Plan to Block Elon Musk From
Increasing Stake 2022-4-16
h. Twitter Accepts Elon Musk’s Offer to Buy Company in $44 Billion
Deal 2022-4-25
i. Elon Musk Says His $44 Billion Twitter Deal Is ‘On Hold’ 2022-5-
13
j. Elon Musk Says Twitter Deal Can’t Move Forward Without Clarity
on Fake Accounts 2022-5-17
k. Letter responding to SEC comments of 2022-6-2. Response
dated 2022-6-7 (made public 2022-7-14)
1. SEC Questioned Elon Musk Tweet Over Twitter
Deal 2022-7-14
l. Twitter Sues Elon Musk to Enforce $44 Billion Merger 2022-7-12
m. Twitter Didn’t Seek a Sale. Now Elon Musk Doesn’t Want to Buy.
Cue Strange Legal Drama. 2022-7-11
n. Twitter, Elon Musk 5-Day Trial Is Set for Week of Oct. 17 in
Delaware Chancery Court 2022-7-29
o. Elon Musk Proposes Closing Twitter Deal on Original Terms
2022-10-4
p. Twitter, Elon Musk Trial Postponed as Deal Talks Stall 2022-10-6
q. Elon Musk Ousts Twitter Board, Named Sole Director 2022-10-
31
r. Elon Musk Says Twitter Has Had Massive Revenue Drop as
Layoffs Begin 2022-11-5
s. Elon Musk’s Finances Complicated by Declining Wealth, Twitter
Pressures 2022-12-23
Page 15
t. Twitter Sued Over Rent Payment in San Francisco 2023-1-1
u. Optional: Your lecturer is quoted (and not very profound!):
i. What’s Next in the Elon Musk-Twitter Saga? A Court
Battle 2022-7-11
ii. Elon Musk Seems to Answer to No One. Except for a
Judge in Delaware.2022-10-27
2. The rise and fall of SPACs
a. The Year of the SPAC (read for introductory lecture)
b. SEC release on SPACs 12-22-20
c. Mayer, Brown, Traditional IPO vs. Merging with a SPAC
d. Skadden, SPACs: Reshaping M&A and IPOs for European
Companies
e. SPACs Face New Test: A Wave of Asia-Focused Deals
f. Wall Street Journal, Feb. 3, 2021, Electric-Car Buzz Pushes Up
Shares in Company With Nothing but Cash
g. Wall Street Journal, Feb. 3, 2021, E-Car Startup to List in Rich
SPAC Deal
h. Levine on Lucid-Churchill SPAC 2-23-21 (First Section Only)
i. Wall Street Journal Feb. 24, 2021, Nothing Lucid About a $57
Billion Valuation for an Electric-Vehicle Startup
j. Stock Price Chart for Lucid
k. Levine 7-14-20 Everyone Wants a Blank Check (First Section
Only pp. 1-4 of the PDF)
l. Levine 7-27-20 SPACs Aren’t Cheaper Than IPOs Yet -
Bloomberg (First Section Only pp. 1-4 of the PDF)
m. SEC Proposes Significant Changes to Rules Affecting SPACs
(2022-3-30)
n. SPAC Boom Ends in Frenzy of Liquidation (2022-12-25)
o. SEC Charges Former SPAC Finance Chief With Fraud (2023-1-
3)
p. In Novel SPAC Ruling, Court Questions Fundamental SPAC
Structure Under Delaware Law (2023-1-31)
q. Levine, “SPAC SPAC SPAC” (2023-1-9) (pp1-5 of the PDF)
3. The Interaction of Dutch, Irish, US and Israeli Law: The Mylan Battles
a. The Unintended Twist of Tax Inversions
b. Dealpolitik: Can a Teva Tender Offer Best Mylan’s Defenses?
Page 16
c. Dealpolitik: Mylan to Investors: We’ll Do What We Want (also
assigned for first class)
[See also the articles listed below under Netherlands and the UK]
4. UK
a. Skadden: Guide to UK Takeover Regime
b. Skadden: UK Takeover Panel Proposes Significant Changes to
the Offer Timetable and the Treatment of Conditions
c. Dentons: Brexit Key issues for corporate law and corporate M&A
transactions
d. Takeover Law in the United Kingdom after Brexit: Towards
Protectionism?
e. THE TAKEOVER PANEL THE OFFER TIMETABLE IN A
COMPETITIVE SITUATION (PCP 2022/3 19 October 2022) –
Introduction and Summary only (pp. 1-2)
f. Sullivan & Cromwell: UK Takeover Panel Toughens up UK
Takeover Regime
g. Davidoff--The Curious Incident of Pfizer's 'Final' Offer for
AstraZeneca
h. Dealpolitik—Behind the Breakup Fees on the Verizon/Vodafone
Deal
i. UK Takeover Panel on Shareholder Activism—Practice
Statement No. 26
j. Acquisition Financings: European Certain Funds vs. US Limited
Conditionality
k. Dealpolitik: Mylan-Perrigo Fight Destined to Be a Nasty One
l. Dealpolitik: Perrigo Victory Challenges Conventional Wisdom
m. Post-Brexit, a More Demanding UK Merger Review Process
n. Optional: UK Takeover Code
5. Netherlands
a. Moneybeat--A Brief History of the Dutch Poison Pill (Stichting)
b. A Stichting and What It Can Do for Mylan
c. Dealpolitik: Why Mylan Has a Leg Up in the Vote on Its Perrigo
Bid
d. Dealpolitik: Did Mylan Stockholders Know Enough When They
Approved Its Inversion? (also assigned for first class)
e. Dealpolitik: The Problem with Akzo Nobel’s Governance
Structure
f. Dealpolitik: Going Dutch? Mylan, Akzo Nobel Should Give
Investors Pause
g. Netherlands needs anti-takeover panel, says finmin
Dijsselbloem
Page 17
6. Europe (Other)
a. Europe M&A: The Evolving Takeover Landscape
b. The Celesio/McKesson Imbroglio
i. McKesson Comes Up Short on Celesio Tender Offer
ii. McKesson to Buy Celesio in New Deal After Failed Bid
iii. Excerpt from McKesson 2014 Form 10-K
iv. Magnetar Capital sues McKesson over Celesio deal
7. Canada
a. Debunking the Myth: Why Activism Is Tough in Canada
8. Japan
a. SHAREHOLDER ACTIVISM IN JAPAN (May 2020)
b. Japanese Business Judgment Rule case (Comment (pp. 220-
226) only),
c. Sony Prepares for Second Campaign by Activist Investor Loeb-
FT 4-23-19
d. What’s driving activism in Japan?
e. Activist investors busier than ever in Japan despite coronavirus
f. Optional: Japanese Case on Defensive Measures (Comment
(pp. 316-322) only)
g. Optional: Japanese Tender Offers
9. China
a. Key Considerations for Inbound M&A in China
b. China Culture Crash (repeated from introductory lecture)
c. Optional: Deloitte: China M&A Playbook
d. Optional: Chinese Tender Offers (and abbreviations),Chengwei
Liu “Chinese Capital Market Takeover and Restructuring Guide”
10. Additional US Material
a. Staff Legal Bulletin 3A (Court approved reorganizations
(includes certain schemes of arrangements))
b. Staff Legal Bulletin 4 (Spin-offs)
c. Review: “Acquisition of Non-U.S. Companies with Stock
Consideration,” Wachtell, Lipton, Cross-Border M&A Guide
(2021) (pp.32-35 only)
Page 18
d. Skadden, SEC Adopts Standards of Professional Conduct
for Attorneys
e. CFIUS’ Final Rules: Broader Reach, Narrow Exceptions and
Foretelling Future Change
f. Executive Order Reinforces CFIUS’ Broad Authority To Identify
National Security Risks
g. Mayer Brown, Overview of Hart-Scott-Rodino Merger Review
Process
h. Skadden, FTC Announces New HSR Notification Thresholds and
Filing Fee Structure (2023-2-1)
i. Skadden, FTC Announces Unprecedented Indefinite Moratorium
on Early Terminations of HSR Act Waiting Periods
j. Optional: When Foreign M&A Advisers Approach US Targets
k. Optional: The Evolution of Hostile Takeover Regimes in
Developed and Emerging Markets
l. Optional: Davidoff: Lesson for Boardroom Battles from Israel
Other useful materials
Lipton-Bebchuk (and others) Ongoing Debate on Shareholder Rights, Stakeholders and the
Development of ESG Theories (31 March and 1 April Classes)--OPTIONAL
1. Shareholder Rights Project at Harvard
2. Shareholder Rights Project at Harvard, Companies Agreeing to Move Towards
Annual Elections
3. Lipton & Mirvis, “Harvard’s Shareholder Rights Project is Wrong”
4. Bebchuk, “Giving Shareholders a Voice”
5. Lipton & Neff “Harvard’s Shareholder Rights Project is Still Wrong”
6. Lipton, “Bite the Apple; Poison the Apple; Paralyze the Company; Wreck the
Economy”
7. Benoit, “Shareholder Group Makes Progress in Fight for Annual Board Elections”
8. Shareholder Rights Project, News Alert March 2013
9. Bebchuk, “Wachtell Lipton was Wrong About the Shareholder Rights Project”
10. Bebchuk, Brav, Jiang “The Long-Term Effects of Hedge Fund Activism”
11. Bebchuk, “The Myth that Insulating Boards Serves Long Term Value”
12. Lipton “The Bebchuk Syllogism”
13. Lipton “Current Thoughts About Activism”
14. Bebchuck “The Myth that Insulating Boards Serves Long Term Value”
Page 19
15. Lipton “Dealing with Activist Hedge Funds”
16. Bebchuk, Brav, Jiang “Don’t Run Away from the Evidence: A Reply to Wachtell
Lipton”
17. Bebchuk, Brav, Jiang “Still Running Away from the Evidence: A Reply to Wachtell
Lipton’s Review of Empirical Work”
18. Lipton “Do Activist Hedge Funds Really Create Long Term Value?”
19. The Threat to the Economy and Society from Activism and Short-Termism
Updated
20. Wachtell Lipton explains Some Lessons from DuPont-Trian
21. Succeeding in the New Paradigm for Corporate Governance
22. Engagement: The Missing Middle Approach in the Bebchuk–Strine Debate
23. Lipton, More Myths from Lucian Bebchuk
24. Lipton, Thoughts for Boards: Key Issues in Corporate Governance for 2023
25. Bebchuk, Don’t Let the Short-Termism Bogeyman Scare You
26. Strine, TOWARD A TRUE CORPORATE REPUBLIC: A TRADITIONALIST
RESPONSE TO BEBCHUK'S SOLUTION FOR IMPROVING CORPORATE
AMERICA, (2006) Harvard Law Review
27. Strine, MAKING IT EASIER FOR DIRECTORS TO “DO THE RIGHT THING”?
(2014), Harvard Business Review
28. Strine, Restoration: The Role Stakeholder Governance Must Play in Recreating a
Fair and Sustainable American Economy(2021)
29. Strine, Good Corporate Citizenship We Can All Get Behind?: Toward A Principled,
Non-Ideological Approach To Making Money The Right Way (2022)
Delaware Corporate Law cases for background (31 March and 1 April)—OPTIONAL
1. Delphi Financial Opinion
2. In re El Paso Memo Opinion
3. Kallick v Sandridge Opinion
4. Martin Marietta v Vulcan – Final Opinion
5. In re Del Monte Opinion
6. Air Products v Airgas Opinion
7. In re CNX Gas Corporation Opinion
8. Kahn v M & F Worldwide
9. In re Hammons Hotels
Page 20
10. In re Siliconix Shareholders
11. In re Topps Company Shareholders
12. In re Toys r Us
13. Kahn v Lynch Communications Systems
14. Lyondell Chemical v Ryan
15. Moran v Household Intern.
16. Potter Anderson—Delaware Law Updates
17. Smith v Van Gorkom
18. Stone v Ritter
19. Unocal Corp v Mesa Petroleum
20. In re Rural Metro Corporation Stockholders Litigation
21. Kahn v M & F Worldwide Corp
22. ATP Tour v Deutscher Tennis Bund
23. Boilermakers Local v Chevron
24. Third Point v Ruprecht
25. In re Dole Food Co.
26. Singh v. Attenborough
27. In Re Trulia Inc. Stockholder Litigation
28. In re: Appraisal of Dell Inc.
29. Corwin v. KKR Financial Holdings LLC
30. Marchand v. Barnhill
31. Delman v. GigAqcuisitions3
CROSS BORDER DEALS
Semester One, 2023
Reading Guide
THE UNIVERSITY OF SYDNEY LAW SCHOOL
sydney.edu.au/law
Page 1
Section 113P Copyright Act 1968 Warning Notice
WARNING
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you by or on behalf of the University of Sydney in
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The material in this communication may be subject to
copyright under the Act and other applicable laws. Any
further reproduction or communication of this material by
you may be the subject of copyright protection under
those laws.
Do not remove this notice
Students should note that the selling or purchase of lecture
notes, Unit Outlines, teaching materials, and downloading of
lecture recordings without permission, infringes this copyright.
Page 2
This document contains unit of study specific information. It must be read in
conjunction with the Sydney Curriculum Unit of Study Outline, the Canvas site for
your unit of study and Law Student Portal. Students should also ensure they
consult the University website for up to date policy information.
The Student Portal page is intended to direct you to relevant resources for your course (LLB,
JD or PG), answer frequently asked questions from currently enrolled students and to direct
you to the appropriate information resources.
It is not intended as a complete guide to all policies and procedures, and you should always
consult the University of Sydney Law School or University website for detailed information.
The Student Portal includes links to information on such topics as:
• Timetables;
• Course structures;
• Academic integrity;
• Canvas/LMS;
• Withdrawing from a unit of study;
• Special consideration;
• Simple extensions;
• Style guide and referencing;
• Student support services, including disability support;
• Form for requesting permission for a unit of study;
• Opportunities (offshore units, exchange, social justice, mooting, internships and more);
• Receiving feedback;
• Attendance requirements for Sydney Law School;
• Student Experience, which includes links to Academic Enrichment and Support
(Learning Centre Seminars, PASS, Legal Writing Resources and many other useful
resources)
Ensure you are aware of the content, and that you have consulted it before beginning a unit
of study.
All student enquiries should be directed to the Student Centre. You can also contact 1800
SYD UNI, check the Current Student website http://sydney.edu.au/students/ , or submit a web
form.
Page 3
Lecturer name and contact details
Title/Name Ronald Barusch
Email rbarusch@gmail.com
Preferred method of communication
The best way to reach me is by email (rbarusch@gmail.com). I would be happy to arrange a
mutually convenient time to meet or have a telephone or Zoom conference with you if you email
me to request such a meeting. I will be physically present at the Law School from 16 March
through 4 April (Please use my Gmail email address as I do not regularly check any University
email.)
With regards to correspondence with academic staff, students should remember to provide their
student identification number, especially when sending emails. N.B. Email communication
should be via your Sydney University email account.
Please note: as per our University policy, the official channel of communication is your official
university email, not the Canvas inbox.
Although Canvas includes a messaging function via this Inbox feature, we strongly recommend
that all communication with teachers and peers remains through your university email and
inbox." (Student Canvas Guide, Navigation, Inbox).
Important notes on the reading:
1. There is a substantial amount of assigned reading to be completed prior to the
first lecture on 24 March. In addition, there will be a lot of reading throughout this
course and some of it you may find heavy going. The reason for this is that we will cover
a large portion of what would be covered in a traditional U.S. Securities Regulation class
and a U.S. M&A class, PLUS we will go into depth on many practical issues arising on
cross-border transactions as well as looking at how some of these issues are treated in
other jurisdictions. This will manifest itself particularly in the reading to be completed
prior to our first class on Friday, 24 March. I urge you not to wait until the last minute
before the class to read this material. It consists, among other things, of hundreds of
pages from the Textbook, which is quite dense and will likely have concepts which are
new to you. Although there is lots of reading for the other classes as well, once you
conquer this mountain, I think you will find the remaining reading more manageable.
Because of the nature and length of the reading for the first class, please obtain the
Textbook as soon as you reasonably can. See below on ordering the Textbook from the
publisher or amazon.com.au. It appears that the ebook from the publisher is
substantially cheaper and the publisher has advised me that by using the LAW10 promo
code will get you 10% off.
2. In my view, it is critically important to complete the reading assignments before the
applicable lecture. Not only will I assume that the material has been read, but, given the
nature of the topics and the concepts addressed, you will get a lot more out of my
lectures and our discussions if you are well prepared. Also, there is material in the
reading that may not be discussed in class unless you ask about it.
3. Some good news: The “Problems” in the Textbook, even if included in pages assigned,
are NOT assigned unless specifically referenced in a note on Canvas or emailed to you.
Page 4
4. Some common sense needs to be applied in doing the reading in the Textbook and
assigned rules. Remember that the basic objective of this course is to help you identify
and understand cross-border issues, be creative in their solution, understand why a
foreign lawyer’s perspective may be different than yours, and at times be able to push
back on a U.S. lawyer who says that a particular issue always must be handled a certain
way. It is not to have you memorize all of the finer points of detailed regulations. Many
of the readings go into the detailed requirements because I want you to be able to
understand those concepts as well as being able to identify and discuss issues, but not
necessarily to memorize them.
5. I recommend you NOT automatically print the entire contents of all of the various
links provided below (and on Canvas). Some sample disclosure and other documents
are included which are quite long but only a small portion (or none - the document only
being included for reference) of which may be assigned for reading. Note also that I
have included links to a number of Delaware cases and other material under “Other
Useful Materials” below which might be helpful to refer to (or could be a place to dive
deeper once you have mastered the required reading) but are not assigned. Some of
the readings which are assigned are only small portions of the document which is linked
so be sure to look at the assignment to be sure you are only reading what is assigned
(unless you want to read more).
There is a separate memorandum (available on Canvas) on, among other things, the
assessments, including the final written assignment, the online discussion forums and
participation. Please carefully review it and watch Canvas for updates.
Reading materials
Required reading
Required textbook
All students should purchase the following book:
Coffee, Sale and Whitehead, Securities Regulation: Cases and Materials, Fourteenth Edition
(Foundation Press 2021) (ISBN 978-1647087753)) (the “Textbook”) (but see below on a
possibly cheaper way to purchase it).
Obtaining the book
The textbook is available at the publisher’s website in ebook form (which is cheaper than the
print version) and the print version is available at amazon.com.au. (Note that you want to
purchase the 14th edition.) The publisher has advised me that by using the LAW10 promo
code will get you 10% off if you purchase the ebook version on the publisher’s website. There
is a significant amount of reading in them which should be completed prior to the first lecture
on 24 March. Please be sure to allow sufficient time to allow for timely delivery to prepare for
class, particularly if you order the print version.
Because of the magnitude of the assigned reading, you are strongly urged to buy the Textbook.
However, I have been advised that a copy of the print version of the Textbook will be available
on short loan at the Law Library.
In past years I have recommended the purchase of the accompanying rules pamphlet that have
certain U.S. Federal statutes and Securities and Exchange Commission regulations. However,
that was largely to have a ready reference in class. I think a printed copy of the rules pamphlet
is less necessary since all of the laws and regulations we will read are online and there are
Page 5
links in the assignments below to them. If you do want to purchase the rules pamphlet you can
find it here.
In the M&A portion of the class we will be referring to certain sections of the Delaware General
Corporation Law (the “DGCL”). An online version of the DGCL can be found at
http://delcode.delaware.gov/title8/c001/ . Links to specific sections are included with the
assigned reading below.
For certain non-U.S. cross-border comparative information, it may be convenient to refer to this
web site: https://iclg.com/practice-areas/mergers-and-acquisitions-laws-and-regulations.
From time to time some information on the jurisdictions available on that site may be assigned.
Any readings on this web site will be from material available in front of the pay wall. There is
no need to purchase the print version of this book.
The remainder of the reading is available via the links indicated below. If you find difficulties
clicking through any assigned reading, please email me as soon as you discover it. You should
expect further material or links to be posted from time to time on the Canvas site.
Other required reading
Links to other required reading and page numbers of the Textbook which are assigned are
included below.
Lecture schedule and reading list
Reading Assignments1
Please watch Canvas for possible modifications and
additions to these readings, including reading
assignments for guest lectures.
I. 24 March Class
A. INTRODUCTORY MATERIAL:
1. A Few Examples
a. What happens when Section 5 of the Securities Act of 1933
is violated? (Much more on Section 5 below –it is largely the
basis for the first half of the course.):
1 The order of discussion (and therefore readings) is subject to change. In addition, the reading
assignments are likely to be updated from time to time both because of developments and discussions
in class. Changes will be announced in class and/or on Canvas. The bolded items are of particular
significance and merit a more careful review.
Page 6
i. Barclays to Book $591 Million Loss Due to
Debt-Sale Snafu
ii. Debt-Sale Debacle at Barclays Was Bigger
Than First Thought
iii. Matt Levine, “Oops” (pp1-5 of the PDF)
iv. The Impact: Barclays Agrees to a $361 Million
Settlement to Resolve SEC Charges Relating
to Over-Issuances of Securities
b. Dealpolitik--David Jones Deal Highlights Power of
Shareholders in Australia
c. Dealpolitik--Could U.S. Law Have Averted David Jones
Pain? (a different David Jones incident)
d. Dealpolitik--Who Needs “Truth in Takeovers”? Not the U.S.
e. Dealpolitik--Alibaba’s Structure v. Dual Class — the Bottom
Line
f. Dealpolitik: Will the War at Viacom Threaten the Super-
Voting Stock?
g. Dealpolitik--James Hardie Case Highlights Better Treatment
of U.S. Directors
h. Davidoff, The Hurdles Ahead for a Cooper Tire Deal
i. China Culture Crash
ii. Optional: 8 years later…Cooper Tire and
Goodyear Merger Announcement (2021/2/22)
i. Davidoff, “Tasting the Difference in a Cross-Border Deal,”
j. Moneybeat-The Perils of Trans-Atlantic Mergers
k. Dealpolitik: Mylan to Investors: We’ll Do What We Want
l. Dealpolitik: Did Mylan Stockholders Know Enough When
They Approved Its Inversion?
m. Dealpolitik: Delaware Ruling May Complicate Management
Buyouts
n. Activism 101: Read Corporate Bylaws — Dealpolitik
o. Expecting a Sweet Deal for Hershey? You May be
Disappointed — Dealpolitik
a. Optional: Mondelez abandons pursuit of U.S. chocolate
maker Hershey (2016-8-29)
p. The Year of the SPAC (2021-1-26)
a. SPAC Boom Ends in Frenzy of Liquidation - WSJ (2022-
12-25)
b. AFR 2/15/21 First Aussie-focused SPAC hunts the ‘next
Atlassian’
i. APAC-focused SPAC Catcha Investment 2.0
withdraws $250 million IPO
2. U.S. Federal vs. State Regulation of Some Fundamental M&A Issues
Page 7
a. Santa Fe Industries v. Green, Textbook pp. 1037-1043
c. Weinberger v. UOP (Parts II(B), II(C), II(D) and III only)
d. Kahn v. M&F Worldwide Corp. case note
e. Dealpolitik: CBS Directors Play a Subtle Game in Viacom
Battle
f. Sections 251(a)-(c), (h), 253(a), 259(a) and 262 (a)-(b)of the
Delaware General Corporation Law (the “DGCL”),
g. Rule 10b-5 under the Securities Exchange Act of 1934, as
amended (the “1934 Act”)
h. CTS v. Dynamics Corp. of America (and subsequent note),
Textbook 880-891
3. Delaware Supreme Court Says ‘Quasi-California Corporation’
Statute, Violates U.S. Constitution”
4. Davidoff, “In Corporate Disclosure, a Murky Definition of Material”
5. Dealpolitik: Don’t Count Out Delaware
6. Some Unusual Aspects of U.S. Litigation
a. Seventh Amendment to the U.S. Constitution
b. Dealpolitik: Is a Whopping Legal Fee a Marketing Pitch by a
Delaware Court?
c. Dealpolitik: More Evidence of Broken Shareholder Litigation
System
d. Optional: In re Walgreen Co. Stockholder Litigation (Judge
Posner’s August 2016 opinion on a disclosure-only settlement
labelling it a racket)
e. In re Trulia, Inc. case note
7. Wachtell, Lipton, Takeover Law and Practice (2022), pp. 8-10
(Shareholder Litigation) and pp. 10-19 (Shareholder Activism and
Engagement)
8. Basic Inc. v. Levinson, Textbook pp.1061-1068 (note particularly
the materiality standard of TSC Industries, Inc. v. Northway, Inc.
(discussed on p. 1063) and footnote 17)
9. Note on Materiality, Textbook pp. 1177-1182
10. Baker McKenzie, In the Know: 144A vs Reg S only--
Considerations in high-yield offerings
11. Introduction to U.S. Securities Laws Applicable to Offerings
a. Sections 2(a)(3), 2(a)(10), 2 (a)(11), 4(a)(1), 4(a)(2), 5,
11, 12 and 17(a) of the Securities Act of 1933, as
amended (the ‘1933 Act”)2
2 Securities lawyers almost always cite the 1933 Act, the 1934 Act and other U.S. securities laws
by the section numbers in the original statutes (adopted almost 90 years ago). Indeed, the SEC rule
Page 8
b. Textbook pp. 523-593
c. Optional: Textbook pp. 50-583, 67-924
12. For reference, but not assigned: Complete U.S Constitution
B. Offerings of Securities in the U.S.:
1. Textbook pp. 93-151 (Basic U.S. structure of securities offerings and
the JOBS Act)
2. Groupon gun-jumping issue
a. Davidoff, “In a Quiet Period, Groupon Feels the Noise”
b. Groupon SEC Comment Response 9-2-2011 (Comment #4)
c. Groupon SEC Comment Response 9-16-2011 (pp1-9)
3. Textbook pp.177-189 (after reading this jump ahead to read this article:
SEC Scrutiny Blocks Some Crypto Firms From Going Public), 208-216,
2022 Update on MD&A from Textbook Authors (2022-8-8), 220-225,
258-269, Optional: 153-174 (Registration Process)
4. Textbook pp. 326-332 (Sale of Business Doctrine)
5. Textbook pp. 373-399 (Private Placements)
a. Optional (for a bit of a chuckle on the concept of “accreditor
investor” and private placements (though a serious view by much
of the practicing bar)): Levine, “Certificate of Dumb Investment”
(the second section in this link, pp 5-7 of the PDF) (2023-2-7)
6. Textbook pp. 405-436 (Regulation D); Optional: Textbook pp.501-507
(Crowdfunding), pp. 436-444 (Regulation A+)
7. Preliminary Note (Rule 500) to Regulation D, Rules 501, 502(a), (b)(1),
(c), and (d), 506, 507 and 508 of Regulation D under the 1933
numbers for rules adopted under the 1934 Act and certain other statutes use those references (e.g.
Rule 10b-5). However, U.S. statutes have been compiled into a series of titles of what has been named
the “United States Code” with entirely different section numbers. Therefore, when you click on the links
of statutory references assigned here, you are directed to the U.S.C. and sections 2, 4, 5, 11, 12 and 17
of the 1933 Act become 15 USC Sections 77b, 77d, 77e, 77k, 77l, and 77q, respectively. Remember
we will be referring to these provisions as sections of the original statute (and that is what the assigned
section numbers refer to (even though they link to the applicable section number in the U.S.C.)). The
words of the statutory sections are the same.
3 In connection with U.S. Federal securities regulation, our focus will be on portions of the 1933
Act and the 1934 Act and related rules. It is helpful to have the overview of the regulatory system
provided by this brief passage, but in general it is not necessary to retain in depth knowledge of other
statutes.
4 As you read the description of the U.S. underwriting process (and all of the material for this
course), you should be asking yourself how this process differs with that in Australia (or your home
country) and whether there could there be regulatory or practical issues arising from these differences.
Page 9
8. Form D5 under the 1933 Act,
9. Textbook pp. 600- (Rule 144A and Regulation S)
10. Rule 144A under the 1933 Act
11. Regulation S under the 1933 Act
12. Optional: Textbook pp. 745-758 (Reg M, free riding, spinning)
13. Textbook pp. 919-970, 976-1037, 1112-1122, 1139 (from last
paragraph)-1143 (Civil Liabilities, including Escott v. BarChris,
WorldCom, Basic v. Levinson (assigned above), Ernst & Ernst v.
Hochfelder, the Due Diligence Defense, Gustafson v. Alloyd and The
Fraud on the Market Theory)
a. Optional: Halliburton v Erica P. John Fund, Textbook pp.1128-
1140
14. Will Cryptocurrency be regulated as securities?
a. SEC Chairman Gary Gensler speech on regulating
cryptocurrency as securities (2022-9-8)
b. Inside a Crypto Nemesis’ Campaign to Rein In the Industry
(2021-11-21)
c. Latest SEC Lawsuit Shows Crypto’s Troubles Might Not Be
Contained To FTX (2022-12-22)
d. How Crypto’s Meltdown Changed the Regulatory Debate (2023-
1-8)
e. SEC Sues Crypto Firms Genesis and Gemini Over Lending
Product (2023-1-12)
f. SEC Scrutiny Blocks Some Crypto Firms From Going Public
(2023-1-24)
g. Wachtell: SEC Halts Cryptoasset “Staking-As-A-Service”
Program Amidst Tightening Regulatory Enforcement
Environment (2023-2-13)
h. Levine, Central Crypto (2023-2-13) (pp. 1-8 of the PDF)
i. Optional: Contrary Position: Why Cryptoassets Are Not
Securities (2022-12-6)
II. 25 March Class: Issues Arising in Cross-Border Financings
1. Review: “The Liability Provisions of the Securities Act and Exchange Act,”
Wachtell, Lipton, Cross-Border M&A Guide (pp.71-81 only)
5 This form is assigned just familiarize yourself with the nature of the information required (and
why people might not want to file it). The instructions to the form are not assigned.
Page 10
2. Rio Tinto Registered Debt Offering Prospectus—only the following pages: In
the supplement: pp. S-1 (cover of supplement) through S-4, S-8 through S-14
(Risk Factors), S-25 through S-28. Base Prospectus: Cover, pp. 1, 46-48
3. Australian Law Exhibit 5 opinion for a debt offering
4. US Law Exhibit 5 opinion for a debt offering
5. Sample US 10b-5 letter
6. Australian Tax opinion
7. Note that the Rio Tinto underwriting agreement can be found here. It does not
need to be read for detail, but should be reviewed to understand the structure of
a U.S. underwriting.
8. Brambles 144A Offering Memorandum—only the following pages: Cover, i-v, 22-
33, 150-162
9. PLI, “Big Boy Letter
10. AS (Auditing Standard) 6101 issued by the Public Company Accounting
Oversight Board (PCAOB) : Letters for Underwriters and Certain Other
Requesting Parties (also known as Cold Comfort Letters)--only the following:
Example A, Example F
11. Valemus Limited Wrap for a Rule 144A offering—only cover of wrap to p.29 of
wrap
12. U.S. Law firm's due diligence training memo
13. Tips for Drafting Rule 144A or Reg S Indenture
14. Morrison v. NAB and its aftermath, Textbook pp. 1475-1503
15. SEC to Permit All Issuers to Submit Confidential Draft Registration Statements
16. Eurobond Offerings-- Excerpts from Fuller, Law and Practice of International
Capital Markets, 2012 (pp. 231-268)
17. Dealpolitik: Honeywell Pushes Envelope on Deal Disclosure
18. The Growth of Collective Shareholder Actions in Europe
19. Optional: Capital Markets:UK
20. Optional: EU Prospectus Directive
21. Optional: Slaughter and May, Brexit and the Capital Markets – does equivalence
need to be mutual?
22. Optional: Doing Business in Japan: Securities Offerings
23. Not assigned but you may want to review: BHP Debt Registration 16 Nov 2011
III. 31 March Class: Fundamentals of U.S. M&A:
1. Delaware General Corporation Law Sections 141(a), (d), (e) and (k)(1) and
102(b)(7)
2. Folk on the Delaware General Corporation Law, 141.02[A][1]-141.02[A][3][a]
(pp1-6 of the PDF), 141.02[B][1]-[B][3][a] (pp.33-37 pf the PDF) 141.02[E][1]-
Page 11
141.02[E][1][b] (pp 76-79 of the PDF), 141.02[F][1][a]-141.02[F][2][c] (pp. 100-
111 of the PDF) (Fiduciary duty of directors and the business judgment rule)
3. Folk on the Delaware General Corporation Law 151.05[A]-[B] (pp1-2 of the
PDF) (Controlling stockholders’ fiduciary duties)
4. Wachtell, Lipton, Takeover Law and Practice (2022), pp. 23-85 and 103-
173. Optional: pp.85-101
5. Optional: 1934 Act statutory sections relevant to takeovers (the “Williams Act”)
a. Sections 13(d), 13(e), 13(f),
b. Sections 14(a), 14(c), 14(d) and 14(e)
6. Rule 3b-4(c)
7. 12g3-2(a) and 12g3-2(b) of the 1934 Act.
8. Selected rules from Regulations 13D-G, 14D and 14E
a. Regulation 13D-G
i. § 240.13d-1 Filing of Schedules 13D and 13G.
ii. § 240.13d-2 Filing of amendments to Schedules 13D or 13G.
iii. § 240.13d-3(a)-(d)(1) Determination of beneficial owner.
(remainder of rule is optional)
iv. § 240.13d-4 Disclaimer of beneficial ownership.
v. Optional: § 240.13d-5 Acquisition of securities.
vi. Optional: § 240.13d-6 Exemption of certain acquisitions.
vii. Optional: § 240.13d-7 Dissemination.
viii. Optional: § 240.13d-101 Schedule 13D - Information to be
included in statements filed pursuant to § 240.13d-1(a) and
amendments thereto filed pursuant to § 240.13d-2(a).
ix. Optional: § 240.13d-102 Schedule 13G - Information to be
included in statements filed pursuant to § 240.13d-1(b), (c),
and (d) and amendments thereto filed pursuant to § 240.13d-
2.
b. SEC Proposes Changes to Beneficial Ownership Reporting
i. Optional: Wachtell Comment Letter (2022-4-11) on Expanding
Beneficial Ownership Reporting
c. Regulation 14D
i. § 240.14d-1(a), (c)-(f) Scope of and definitions applicable to
Regulations 14D and 14E. (remainder of rule is optional)
ii. Optional: § 240.14d-2 Commencement of a tender offer.
iii. Optional: § 240.14d-3 Filing and transmission of tender offer
statement.
iv. Optional: § 240.14d-4 Dissemination of tender offers to security
holders.
v. Optional: § 240.14d-5 Dissemination of certain tender offers by
the use of stockholder lists and security position listings.
Page 12
vi. Optional: § 240.14d-6 Disclosure of tender offer information to
security holders.
vii. § 240.14d-7 Additional withdrawal rights.
viii. § 240.14d-8 Exemption from statutory pro rata requirements.
ix. § 240.14d-9 Recommendation or solicitation by the subject
company and others.
x. § 240.14d-10(a) Equal treatment of security holders.
(remainder of rule is optional)
xi. Optional: § 240.14d-11 Subsequent offering period.
xii. Optional: § 240.14d-100 Schedule TO. Tender offer statement
under section 14(d)(1) or 13(e)(1) of the Securities Exchange
Act of 1934.
xiii. Optional: § 240.14d-101 Schedule 14D-9.
d. Regulation 14E
i. Section 14(e) of the 1934 Act
ii. § 240.14e-1 Unlawful tender offer practices.
iii. § 240.14e-2 Position of subject company with respect to a
tender offer.
iv. Optional: § 240.14e-3(a) Transactions in securities on the
basis of material, nonpublic information in the context of
tender offers. (remainder of rule is optional)
v. Optional: § 240.14e-4 Prohibited transactions in connection
with partial tender offers.
vi. Optional: § 240.14e-5 Prohibiting purchases outside of a
tender offer.
vii. § 240.14e-8 Prohibited conduct in connection with pre-
commencement communications.
9. Optional: Regulation M-A (contents of required disclosure)
10. Textbook, pp. 791-908 (Tender Offers)
11. Textbook, pp. 475-497, and Section 3(a)(9), Rule 145, Rule 802 and
Section 3(a)(10) under the 1933 Act
12. Summary of Sandridge Energy, Inc. Stockholder Rights Plan (Poison
Pill) adopted November 26, 2017 (Item 3.03 of this Form 8-K)
13. Stockholder Rights Agreement dated November 26, 2017 of Sandridge
Energy, Inc. (Take a quick look at what largely is a typical poison pill to
get a general sense of the structure of the document that creates a pill
and focus on the following particular provisions: Definitions (Section 1)
of “Acquiring Person,” “Beneficial Owner,” and “Qualifying Offer” (not all
poison pills have Qualifying Offer provisions), Section 7(e) (cancellation
of Acquiring Person’s rights), Section 11(a)(ii) (the “Flip-In”), Section 27
(Supplements and Amendments))
14. An example of U.S. M&A twists and turns (Talbots):
a. Schedule 13D (Item 4. Purpose of Transaction) filed by Sycamore
Partners with respect to Talbots
Page 13
b. Dealpolitik—Talbots
c. Amendment No. 1 to Schedule 13D filed by Sycamore Partners with
respect to Talbots
d. Letter to Sycamore Partners included in Form 8-K of Talbots (rejecting
Sycamore offer)
e. Talbots Press release announcing rejection of Sycamore Partners offer
f. Talbots Settles for Less from Sycamore
15. The Airgas case and the vindication of the poison pill (and how your
Lecturer got it very wrong!)
a. Air Products v. Airgas (Delaware Chancery Decision) pp.1-11 and
pp.77-153
b. Dealpolitik--Delaware Corporate Law Becomes Absurd
c. Dealpolitik: Airgas Deal Vindicates Poison Pill
16. Dealpolitik--Conagra all but Surrenders to Bulletproof Defense
17. Dealpolitik--The J Crew Buyout--Doing Everything Wrong
18. Dealpolitik--M&A 101:
1. Part 1
2. Part 2
3. Part 3
4. Part 4
19. Dealpolitik--The Useful Corruption of Shareholder Lawsuits
20. Dealpolitik: Is Delaware Law Rigged Against the Small Shareholder?
21. Dell, T. Rowe Price Settle Buyout Lawsuit for $25 Million
22. Delaware Supreme Court Reverses Dell Appraisal Decision, Urging
Reliance on Deal Price
23. Dealpolitik: ETE-Williams Shows Need for Tax (Opinion) Reform
24. Activist Investors’ Secret Ally: Big Mutual Funds
25. Altice IPO and the Best Activism Defense — Dealpolitik
26. Dealpolitik: Social Studies — Lesson from Anthem-Cigna Meltdown
27. Kahn v. M&F Worldwide Corp: Delaware Supreme Court Affirms In Re
MFW Court of Chancery Ruling that Business Judgment Review Can
Apply to Squeeze-Out Mergers Conditioned Up Front on Both Approval
by Special Committee and Majority-of-the-Minority Vote (repeated from
introductory lecture readings)
28. Corwin v. KKR Financial Holdings LLC: Delaware Supreme Court Affirms
That an Uncoerced and Fully Informed Disinterested Stockholder Vote
Reduces the Standard of Review in a Merger Without a Controlling
Stockholder to Business Judgment
Page 14
IV. 1 April Class: Some Examples; Cross Border Issues Arising out of Takeovers
1. Twitter, Musk and Civilization in 2022
a. Musk’s Initial 13G Filing 2022-4-4
b. Protocol, Elon Musk didn't follow the rules when he bought his
Twitter stake 2022-4-5
c. Letter from SEC to Musk 2022-4-4 (made public by SEC 2022-5-
27)
d. Elon Musk to Join Twitter’s Board of Directors After Becoming
Largest Shareholder 2022-4-5
e. Elon Musk Decides Not to Join Twitter’s Board 2022-4-11
f. Elon Musk Makes $43 Billion Bid for Twitter, Says ‘Civilization’ At
Stake 2022-4-14
g. Twitter Adopts Poison Pill Plan to Block Elon Musk From
Increasing Stake 2022-4-16
h. Twitter Accepts Elon Musk’s Offer to Buy Company in $44 Billion
Deal 2022-4-25
i. Elon Musk Says His $44 Billion Twitter Deal Is ‘On Hold’ 2022-5-
13
j. Elon Musk Says Twitter Deal Can’t Move Forward Without Clarity
on Fake Accounts 2022-5-17
k. Letter responding to SEC comments of 2022-6-2. Response
dated 2022-6-7 (made public 2022-7-14)
1. SEC Questioned Elon Musk Tweet Over Twitter
Deal 2022-7-14
l. Twitter Sues Elon Musk to Enforce $44 Billion Merger 2022-7-12
m. Twitter Didn’t Seek a Sale. Now Elon Musk Doesn’t Want to Buy.
Cue Strange Legal Drama. 2022-7-11
n. Twitter, Elon Musk 5-Day Trial Is Set for Week of Oct. 17 in
Delaware Chancery Court 2022-7-29
o. Elon Musk Proposes Closing Twitter Deal on Original Terms
2022-10-4
p. Twitter, Elon Musk Trial Postponed as Deal Talks Stall 2022-10-6
q. Elon Musk Ousts Twitter Board, Named Sole Director 2022-10-
31
r. Elon Musk Says Twitter Has Had Massive Revenue Drop as
Layoffs Begin 2022-11-5
s. Elon Musk’s Finances Complicated by Declining Wealth, Twitter
Pressures 2022-12-23
Page 15
t. Twitter Sued Over Rent Payment in San Francisco 2023-1-1
u. Optional: Your lecturer is quoted (and not very profound!):
i. What’s Next in the Elon Musk-Twitter Saga? A Court
Battle 2022-7-11
ii. Elon Musk Seems to Answer to No One. Except for a
Judge in Delaware.2022-10-27
2. The rise and fall of SPACs
a. The Year of the SPAC (read for introductory lecture)
b. SEC release on SPACs 12-22-20
c. Mayer, Brown, Traditional IPO vs. Merging with a SPAC
d. Skadden, SPACs: Reshaping M&A and IPOs for European
Companies
e. SPACs Face New Test: A Wave of Asia-Focused Deals
f. Wall Street Journal, Feb. 3, 2021, Electric-Car Buzz Pushes Up
Shares in Company With Nothing but Cash
g. Wall Street Journal, Feb. 3, 2021, E-Car Startup to List in Rich
SPAC Deal
h. Levine on Lucid-Churchill SPAC 2-23-21 (First Section Only)
i. Wall Street Journal Feb. 24, 2021, Nothing Lucid About a $57
Billion Valuation for an Electric-Vehicle Startup
j. Stock Price Chart for Lucid
k. Levine 7-14-20 Everyone Wants a Blank Check (First Section
Only pp. 1-4 of the PDF)
l. Levine 7-27-20 SPACs Aren’t Cheaper Than IPOs Yet -
Bloomberg (First Section Only pp. 1-4 of the PDF)
m. SEC Proposes Significant Changes to Rules Affecting SPACs
(2022-3-30)
n. SPAC Boom Ends in Frenzy of Liquidation (2022-12-25)
o. SEC Charges Former SPAC Finance Chief With Fraud (2023-1-
3)
p. In Novel SPAC Ruling, Court Questions Fundamental SPAC
Structure Under Delaware Law (2023-1-31)
q. Levine, “SPAC SPAC SPAC” (2023-1-9) (pp1-5 of the PDF)
3. The Interaction of Dutch, Irish, US and Israeli Law: The Mylan Battles
a. The Unintended Twist of Tax Inversions
b. Dealpolitik: Can a Teva Tender Offer Best Mylan’s Defenses?
Page 16
c. Dealpolitik: Mylan to Investors: We’ll Do What We Want (also
assigned for first class)
[See also the articles listed below under Netherlands and the UK]
4. UK
a. Skadden: Guide to UK Takeover Regime
b. Skadden: UK Takeover Panel Proposes Significant Changes to
the Offer Timetable and the Treatment of Conditions
c. Dentons: Brexit Key issues for corporate law and corporate M&A
transactions
d. Takeover Law in the United Kingdom after Brexit: Towards
Protectionism?
e. THE TAKEOVER PANEL THE OFFER TIMETABLE IN A
COMPETITIVE SITUATION (PCP 2022/3 19 October 2022) –
Introduction and Summary only (pp. 1-2)
f. Sullivan & Cromwell: UK Takeover Panel Toughens up UK
Takeover Regime
g. Davidoff--The Curious Incident of Pfizer's 'Final' Offer for
AstraZeneca
h. Dealpolitik—Behind the Breakup Fees on the Verizon/Vodafone
Deal
i. UK Takeover Panel on Shareholder Activism—Practice
Statement No. 26
j. Acquisition Financings: European Certain Funds vs. US Limited
Conditionality
k. Dealpolitik: Mylan-Perrigo Fight Destined to Be a Nasty One
l. Dealpolitik: Perrigo Victory Challenges Conventional Wisdom
m. Post-Brexit, a More Demanding UK Merger Review Process
n. Optional: UK Takeover Code
5. Netherlands
a. Moneybeat--A Brief History of the Dutch Poison Pill (Stichting)
b. A Stichting and What It Can Do for Mylan
c. Dealpolitik: Why Mylan Has a Leg Up in the Vote on Its Perrigo
Bid
d. Dealpolitik: Did Mylan Stockholders Know Enough When They
Approved Its Inversion? (also assigned for first class)
e. Dealpolitik: The Problem with Akzo Nobel’s Governance
Structure
f. Dealpolitik: Going Dutch? Mylan, Akzo Nobel Should Give
Investors Pause
g. Netherlands needs anti-takeover panel, says finmin
Dijsselbloem
Page 17
6. Europe (Other)
a. Europe M&A: The Evolving Takeover Landscape
b. The Celesio/McKesson Imbroglio
i. McKesson Comes Up Short on Celesio Tender Offer
ii. McKesson to Buy Celesio in New Deal After Failed Bid
iii. Excerpt from McKesson 2014 Form 10-K
iv. Magnetar Capital sues McKesson over Celesio deal
7. Canada
a. Debunking the Myth: Why Activism Is Tough in Canada
8. Japan
a. SHAREHOLDER ACTIVISM IN JAPAN (May 2020)
b. Japanese Business Judgment Rule case (Comment (pp. 220-
226) only),
c. Sony Prepares for Second Campaign by Activist Investor Loeb-
FT 4-23-19
d. What’s driving activism in Japan?
e. Activist investors busier than ever in Japan despite coronavirus
f. Optional: Japanese Case on Defensive Measures (Comment
(pp. 316-322) only)
g. Optional: Japanese Tender Offers
9. China
a. Key Considerations for Inbound M&A in China
b. China Culture Crash (repeated from introductory lecture)
c. Optional: Deloitte: China M&A Playbook
d. Optional: Chinese Tender Offers (and abbreviations),Chengwei
Liu “Chinese Capital Market Takeover and Restructuring Guide”
10. Additional US Material
a. Staff Legal Bulletin 3A (Court approved reorganizations
(includes certain schemes of arrangements))
b. Staff Legal Bulletin 4 (Spin-offs)
c. Review: “Acquisition of Non-U.S. Companies with Stock
Consideration,” Wachtell, Lipton, Cross-Border M&A Guide
(2021) (pp.32-35 only)
Page 18
d. Skadden, SEC Adopts Standards of Professional Conduct
for Attorneys
e. CFIUS’ Final Rules: Broader Reach, Narrow Exceptions and
Foretelling Future Change
f. Executive Order Reinforces CFIUS’ Broad Authority To Identify
National Security Risks
g. Mayer Brown, Overview of Hart-Scott-Rodino Merger Review
Process
h. Skadden, FTC Announces New HSR Notification Thresholds and
Filing Fee Structure (2023-2-1)
i. Skadden, FTC Announces Unprecedented Indefinite Moratorium
on Early Terminations of HSR Act Waiting Periods
j. Optional: When Foreign M&A Advisers Approach US Targets
k. Optional: The Evolution of Hostile Takeover Regimes in
Developed and Emerging Markets
l. Optional: Davidoff: Lesson for Boardroom Battles from Israel
Other useful materials
Lipton-Bebchuk (and others) Ongoing Debate on Shareholder Rights, Stakeholders and the
Development of ESG Theories (31 March and 1 April Classes)--OPTIONAL
1. Shareholder Rights Project at Harvard
2. Shareholder Rights Project at Harvard, Companies Agreeing to Move Towards
Annual Elections
3. Lipton & Mirvis, “Harvard’s Shareholder Rights Project is Wrong”
4. Bebchuk, “Giving Shareholders a Voice”
5. Lipton & Neff “Harvard’s Shareholder Rights Project is Still Wrong”
6. Lipton, “Bite the Apple; Poison the Apple; Paralyze the Company; Wreck the
Economy”
7. Benoit, “Shareholder Group Makes Progress in Fight for Annual Board Elections”
8. Shareholder Rights Project, News Alert March 2013
9. Bebchuk, “Wachtell Lipton was Wrong About the Shareholder Rights Project”
10. Bebchuk, Brav, Jiang “The Long-Term Effects of Hedge Fund Activism”
11. Bebchuk, “The Myth that Insulating Boards Serves Long Term Value”
12. Lipton “The Bebchuk Syllogism”
13. Lipton “Current Thoughts About Activism”
14. Bebchuck “The Myth that Insulating Boards Serves Long Term Value”
Page 19
15. Lipton “Dealing with Activist Hedge Funds”
16. Bebchuk, Brav, Jiang “Don’t Run Away from the Evidence: A Reply to Wachtell
Lipton”
17. Bebchuk, Brav, Jiang “Still Running Away from the Evidence: A Reply to Wachtell
Lipton’s Review of Empirical Work”
18. Lipton “Do Activist Hedge Funds Really Create Long Term Value?”
19. The Threat to the Economy and Society from Activism and Short-Termism
Updated
20. Wachtell Lipton explains Some Lessons from DuPont-Trian
21. Succeeding in the New Paradigm for Corporate Governance
22. Engagement: The Missing Middle Approach in the Bebchuk–Strine Debate
23. Lipton, More Myths from Lucian Bebchuk
24. Lipton, Thoughts for Boards: Key Issues in Corporate Governance for 2023
25. Bebchuk, Don’t Let the Short-Termism Bogeyman Scare You
26. Strine, TOWARD A TRUE CORPORATE REPUBLIC: A TRADITIONALIST
RESPONSE TO BEBCHUK'S SOLUTION FOR IMPROVING CORPORATE
AMERICA, (2006) Harvard Law Review
27. Strine, MAKING IT EASIER FOR DIRECTORS TO “DO THE RIGHT THING”?
(2014), Harvard Business Review
28. Strine, Restoration: The Role Stakeholder Governance Must Play in Recreating a
Fair and Sustainable American Economy(2021)
29. Strine, Good Corporate Citizenship We Can All Get Behind?: Toward A Principled,
Non-Ideological Approach To Making Money The Right Way (2022)
Delaware Corporate Law cases for background (31 March and 1 April)—OPTIONAL
1. Delphi Financial Opinion
2. In re El Paso Memo Opinion
3. Kallick v Sandridge Opinion
4. Martin Marietta v Vulcan – Final Opinion
5. In re Del Monte Opinion
6. Air Products v Airgas Opinion
7. In re CNX Gas Corporation Opinion
8. Kahn v M & F Worldwide
9. In re Hammons Hotels
Page 20
10. In re Siliconix Shareholders
11. In re Topps Company Shareholders
12. In re Toys r Us
13. Kahn v Lynch Communications Systems
14. Lyondell Chemical v Ryan
15. Moran v Household Intern.
16. Potter Anderson—Delaware Law Updates
17. Smith v Van Gorkom
18. Stone v Ritter
19. Unocal Corp v Mesa Petroleum
20. In re Rural Metro Corporation Stockholders Litigation
21. Kahn v M & F Worldwide Corp
22. ATP Tour v Deutscher Tennis Bund
23. Boilermakers Local v Chevron
24. Third Point v Ruprecht
25. In re Dole Food Co.
26. Singh v. Attenborough
27. In Re Trulia Inc. Stockholder Litigation
28. In re: Appraisal of Dell Inc.
29. Corwin v. KKR Financial Holdings LLC
30. Marchand v. Barnhill
31. Delman v. GigAqcuisitions3
