IN RE DELL TECHNOLOGIES INC. CLASS V STOCKHOLDERS LITIGATION There has been a growing deference in Delaware courts for transactions approved by independent special committees and minority stockholders. In the context of a company with a controlling stockholder, the Delaware Supreme Court has provided guidance in Kahn v. M&F Worldwide Corp.[1] (“MFW”) on how boards can structure special committees and minority stockholder votes to have board decisions adjudicated under the highly deferential protection of the business judgment rule.[2] However, the Delaware Court of Chancery recently found in In re Dell Technologies Inc. Class V Stockholders Litigation[3] (“Dell”)…

The COVID-19 pandemic has caused severe disruption, distress and uncertainty for companies across almost every industry. While this initially resulted in a substantial slow-down in the M&A market, transactional activity is expected to accelerate in certain areas as the economy begins to recover; for example, we expect to see more carveouts by companies that seek to divest non-core assets, acquisitions of distressed companies, financings of independent companies that may have liquidity issues, and divestitures or joint ventures by private equity funds that seek to exit investments or bring in new partners. Prospective sellers and buyers alike should have an increased…

The COVID-19 pandemic has caused severe disruption, distress and uncertainty for companies across almost every industry. While this initially resulted in a substantial slow-down in the M&A market, transactional activity is expected to accelerate in certain areas as the economy begins to recover; for example, we expect to see more carveouts by companies that seek to divest non-core assets, acquisitions of distressed companies, financings of independent companies that may have liquidity issues, and divestitures or joint ventures by private equity funds that seek to exit investments or bring in new partners. Prospective sellers and buyers alike should have an increased…

On July 15, 2020, the Federal Reserve Bank of Boston issued new guidance expressly permitting tribal businesses that are borrowers under the Main Street Lending Program (“MSLP”) to pay dividends to their tribal government owners.  In its amended Frequently Asked Questions (the “July 15th FAQs”), available here, the Federal Reserve announced that the Treasury Secretary exercised his authority under the CARES Act to waive the prohibition against the payment of dividends in the MSLP, permitting tribal businesses that are wholly or majority-owned by one or more tribal governments to make distributions to their tribal government owners.  See July 15th…

Public companies with a December 31 fiscal year end are now in the process of preparing their Form 10-Q reports for the quarter ended June 30, 2020. When preparing the MD&A section of the Form 10-Q, management should be mindful of the recently released SEC Division of Corporation Finance guidance, “Coronavirus (COVID-10 – Disclosure Considerations Regarding Operations, Liquidity, and Capital Resources”.…

The Main Street Lending Program, intended to provide credit support to small and medium sized businesses, became operational on July 6, 2020.[i] It includes many borrower-favorable economic terms, including a 5-year term, a low interest rate (capped at LIBOR + 3%), an interest payment deferral of 1 year and a principal payment deferral of 2 years, and a generally borrower-friendly amortization schedule.[ii] However, the Main Street Lending Program possesses certain characteristics that could negatively affect an acquisition, sale or other strategic transaction. Since making its initial announcement in March of 2020, the Federal Reserve has released a series…

Below please find a link to a newly-updated version of the Sheppard, Mullin, Richter & Hampton LLP (Sheppard Mullin) Paycheck Protection Program (PPP) Loan Forgiveness Estimator Workbook (the Workbook), which was created by and is the property of Sheppard Mullin.…

The $600 billion Main Street Loan program has been highly anticipated to provide financial support in the form of loans to small and medium-sized U.S. businesses affected by the COVID-19 pandemic. The Federal Reserve Bank of Boston that is administering the Main Street Loan program has released term sheets and various other program documents for the three types of loans, “New,” “Priority” and “Expanded,” as well as over 70 pages of Frequently Asked Questions (FAQs). As a result, the contours of the Main Street Loan program are now substantially settled[1] as the Fed announced publicly on Monday, July…

In Liu v. Securities & Exchange Comm’n, No. 18-1501, 2020 WL 3405845 (U.S. June 22, 2020), the United States Supreme Court upheld the authority of the Securities and Exchange Commission (“SEC”) to seek disgorgement as an equitable remedy under 15 U.S.C. § 78u(d)(5), so long as it “does not exceed a wrongdoer’s net profits and is awarded for victims.”  Although Liu preserved the SEC’s disgorgement powers as a general matter, it narrowed the criteria for appropriate equitable relief, effectively curtailing the SEC’s ability to pursue unduly broad disgorgement remedies.…

In New York Stock Exchange LLC v. Securities & Exch. Comm., 2020 WL 3248902 (D.C. Cir. June 16, 2020), the United States Court of Appeals for the District of Columbia Circuit invalidated the Securities and Exchange Commission’s (“SEC”) experimental transaction fee pilot program to study the market effects of broker-dealer incentive programs used by domestic stock exchanges.  The Court of Appeals held that the SEC lacked the authority under the Securities Exchange Act of 1934 (“Exchange Act”) to compel the exchanges to conduct what amounted to a “costly experiment” to see how the fees these exchanges charge and…

Presidential Proclamation On June 22, 2020, the White House announced an extension and expansion of Proclamation 10014, which was originally announced on April 22, 2020 and restricted the issuance of and entry on immigrant visas.  The new visa ban expands the restrictions to certain non-immigrant categories.…

The US Federal Reserve has confirmed in its Main Street Loans frequently-asked-questions-faqs about the Main Street lending program (the “FAQ”) that US subsidiaries of foreign companies can be eligible borrowers under the various loans available under the program so long as they otherwise meet the other conditions to eligibility for the loans.…