S&C Critical Insights

Carve-Out Transactions in Europe: Key Considerations and Recent Experiences

In this episode of S&C’s Critical Insights, associates from our London, Paris and Frankfurt offices—Costanza Posarelli, Matt Triggs, Alexis Madec and Stephan Rauch— discuss  key considerations for carve-out transactions for EU and U.K. businesses, and their recent experience assisting S&C clients with these complex transactions. 

In the current economic climate,  many companies are evaluating whether they are deploying their assets in a way that maximizes value, and financial sponsors are open to more complex opportunities. Carve-out transactions, in either an M&A or a spin-off context, can be a particularly attractive option.

In either context, there are several considerations to keep in mind, including tax aspects and impacts on financing arrangements for the parent company; the need for third-party consents; the relationship between the carved-out business and parent company going forward; and, if the company opts for a spin-off, the choice of listing venue and potential flowback risks.

Supreme Court’s Recent Slack Technologies Decision

In this episode of S&C’s Critical Insights, Jeff Scott and Julia Malkina, Co-Leads of S&C’s Securities Litigation Practice, discuss the Supreme Court’s June 1 decision in Slack Technologies v. Pirani and the potential implications for securities litigation.

Slack Technologies went public through a direct listing, which allows existing shareholders to sell their unregistered securities on the first day of public trading at the same time as the company’s registered shares are sold. Slack claimed that the plaintiff in this case lacked standing to sue because he could not trace the purchase of his Slack shares to the registration statement.

The issue before the Court was whether Section 11 of the Securities Act of 1933 requires plaintiffs to plead and prove that they purchased securities registered under the registration statement they allege is materially false or misleading. In a win for defendants, the Supreme Court unanimously held that the plaintiffs must plead and prove these facts, reversing the U.S. Court of Appeals for the Ninth Circuit.

Jeff and Julia discuss how the ruling reaffirms the longstanding interpretation of Section 11 and note that the Court’s decision could encourage more companies to go public through a direct listing. The ruling might also encourage legislative efforts to improve tracking of the ownership and registration of securities, including through the use of blockchain technology.

U.S. Clean Energy Tax Credits: Where We Are and Where We Are Going

In this episode of S&C’s Critical Insights, Inosi Nyatta, Isaac Wheeler and Sam Saunders discuss the unanswered questions about requirements and qualifications for receiving tax credits for clean energy projects under the Inflation Reduction Act (IRA).

 

The IRA, which was passed in August 2022, is the largest investment in clean energy in U.S. history and  is expected to unleash a new wave of energy transition projects across the United States. It introduced new or enhanced credits for renewable energy, clean electricity investment and production, energy storage, clean hydrogen, electric vehicles, clean technology manufacturing, sustainable fuels and carbon capture.

 

While the IRA has opened up numerous opportunities for energy transition projects,  there are still a number of uncertainties, including final rules on direct pay and transferability, the potential impact of the OECD’s Pillar Two rules and how debt ceiling discussions may impact availability of IRA tax credits.

Pharmaceutical Deal Outlook: U.S. and European Perspectives

In the webinar “Pharmaceutical Deal Outlook: U.S. and European Perspectives,” Frank Aquila, Matt Hurd, Carsten Berrar, Olivier de Vilmorin and Jeremy Kutner discuss the outlook for M&A deals in the sector. The group of partners, who came together from S&C’s New York, Frankfurt, Paris and London offices, focus in particular on outlining how patent law impacts the tenor of mergers and acquisitions, how the regulatory landscape in both the United States and Europe is affecting dealmaking, and the different considerations for acquirers as opposed to sellers.

Implications of EU Court of Justice Judgment in the Fiat Case for Future State Aid Investigations

In this episode of S&C’s Critical Insights, Juan Rodriguez, Co-Head of S&C’s European Competition Group and the Firm’s Antitrust Group, and associate Marielena Doeding discuss the European Court of Justice’s ruling in the Fiat case and its implication for future state aid investigations. This landmark judgment—in which the Court of Justice annulled a General Court judgment and European Commission decision –clarified the parameters under which the Commission may investigate individual tax rulings under state aid rules. Although the judgment reaffirms that the Commission may investigate tax measures for compliance with state aid rules, in doing so, it cannot apply its own version of the arm’s length principle to tax measures; in particular, it cannot apply the arm’s length principle to tax measures in jurisdictions unless – and then only to the extent that – the law of the jurisdiction incorporates that principle. Instead, the Commission must carefully consider national tax rules to assess whether or not a measure confers a selective advantage for state aid purposes.

Sullivan & Cromwell represented Fiat in this litigation. 

The Impact of COVID-19 on Consumer and Retail M&A

In this episode of S&C’s Critical Insights, partners Audra Cohen, Frank Aquila and Melissa Sawyer share important updates for dealmakers in the consumer and retail sector following the COVID-19 pandemic. Frank and Melissa discuss the impact of support legislation on various business models and explore how a continued shift in consumer priorities and product availability might change fundamental aspects of future M&A in these industries.

M&A and Deal-Making Implications of the FCPA Resource Guide, Second Edition

In this episode of S&C’s Critical Insights series, Sergio Galvis, head of the Firm’s Latin America practice, outlines best practices for companies making cross-border acquisitions in view of updates to the FCPA Resource Guide issued by the U.S. Department of Justice and the Securities and Exchange Commission. With increased cooperation by regulators and law enforcement authorities across jurisdictions leading to more enforcement actions, acquirers should reevaluate their due diligence and compliance programs under these guidelines. Sergio addresses topics including: • designing and implementing an effective risk-based due diligence program for M&A, • the benefits of voluntary disclosure to the authorities of potential corruption issues, • the implementation of an effective compliance program, and • the importance of integration and remediation under the guidelines.

French Financial Authority Proposes New Measures for Shareholder Activism

In this episode of S&C’s Critical Insights podcast series, Olivier de Vilmorin, head of the Firm’s European M&A practice, discusses the measures proposed by France’s securities regulator, the Autorité des marchés financiers (the “AMF”), concerning shareholder activism. Following a growing number of activist campaigns in France over the past several months, the AMF has clarified its position with pragmatic and constructive proposals to better control excessive behavior in shareholder activism campaigns, without preventing them. Olivier explores how these proposals will improve transparency and dialogue between shareholders and issuers and also strengthen AMF’s response capabilities during activist campaigns.

Fiduciary Duty Conversations During COVID-19: Ways to Save a Business

S&C partners Jim Bromley and Andy Dietderich, the co-heads of our Global Restructuring practice, discuss strategies for boards confronting the “zone of insolvency” during the COVID-19 crisis.

European Capital Markets Activity During COVID-19

S&C partners Carsten Berrar, Krystian Czerniecki and John Horsfield-Bradbury discuss the impact of the COVID-19 crisis on capital raising in Europe, and how issuers can adjust structures to address the current situation.