This is the price paid for allowing our hopes, rather than established law, to guide public merger agreement drafting for the last 18 years.  Con Edison v Northeast Utilities[1], a 2005 Second Circuit decision regarding a New York law governed merger agreement, found that, absent clear contractual language to the contrary, a target company could not collect lost shareholder premium as damages for the breach of a merger agreement. ConEd caused quite a stir in public M&A circles, with some asserting that it caused every public merger agreement to be converted into a mere option agreement, where, if the buyer did not wish to close, it had only to pay the target’s out-of-pocket costs. This may have been a bit extreme, but given how infrequently specific performance has been ordered to remedy a failure to close, it probably was not far off the mark.
Continue Reading ConEd Is Not Dead In Delaware

On November 12, 2020, Institutional Shareholder Services (“ISS”) issued its proxy voting guidelines and policy updates for 2021.  These guidelines apply for shareholder meetings taking place on or after February 1, 2021.  The most noteworthy changes are described below.  Companies included in the S&P 500 index should also note that ISS will no longer provide drafts of its reports for company review prior to publication.
Continue Reading ISS Issues Proxy Voting Guidelines and Policy Updates for 2021