With more than 5,200 pages of text and appendices, Professor Sam Thompson’s four-volume treatise Mergers, Acquisitions and Tender Offers: Law and Strategies published by the Practicing Law Institute (PLI), covers the basics in the complex M&A arena and then some. “It details the substantive areas, such as contracts, corporate law, securities, tax, and antitrust. In addition, it then looks at regulatory issues in specific industries such as banking, telecom, and health care. It’s basically everything I know about M&A,” Thompson said.
As director of Penn State’s Center for the Study of Mergers and Acquisitions
, that covers considerable ground. Among other things, for eight years the Center jointly with the New York City Bar Association has sponsored the Institute on Corporate Securities and Related Aspects of M&A and Tax Aspects of M&A. Thompson came to Penn State Law from UCLA School of Law and formerly served as dean of the University of Miami School of Law. He served in both the public and private sectors before joining the academic community and his experience in M&A spans several decades.
“I was really aiming to give M&A lawyers—particularly deal lawyers —a starting point for most of the topics they would encounter in their practices. If they come across a particularly complex issue, say a unique securities law matter, they may need to go beyond this book to sources that I cite which delve more deeply into that issue,” Thompson said. The treatise is the culmination of more than four years of research and writing aided by the support of more than a dozen research assistants and input from some of the top M&A practitioners in the nation. The publishers call it “a well-stocked toolkit by one of the nation’s leading authorities on M&A law.”
In-depth analysis of hot topics
Given that growth for many corporations means expanding geographically, one of the hottest topics in M&A is cross border transactions. Thompson covers both the laws associated with
inbound transactions—foreign entities acquiring U.S. companies—and outbound transactions where U.S. companies acquire a foreign entity. “It’s impossible to review the laws in every jurisdiction where a U.S. company might acquire a target, but I’ve looked at a number of jurisdictions and provided some insight,” Thompson said. He includes a section in the book describing regulations from the European Union (EU) impacting M&A which give EU member countries guidance on how these laws should be applied. The EU has a directive, for example, obliging countries to follow basic rules involving the takeover of a company.
On the inbound side, Thompson looks at recent U.S. regulatory changes. “Transactions that give rise to national securities issues must be vetted by the Committee on Foreign Investment in the U.S. (CFIUS),” he said. “Recent rules have been adopted as a result of perceived failures in the prior law that applied in the bid for Unocal by China National Offshore Oil Corp.”
One of the areas that Thompson has been paying particular attention to in the last several years is health care M&A. “I got interested in this area as a result of the debate in Washington leading to the Affordable Care Act and, in fact, we had a symposium at the Law School featuring national thought leaders,” said Thompson. As a result, he has dedicated a chapter in the book to the unique aspects of health care M&A; for example, acquisitions of physicians’ practices and mergers between hospitals and pharmaceutical companies.”
Tax issues related to M&A also studied
The annual institutes Thompson holds have helped provide insights reflected in the treatise. In the Tax Institute, which will be held in April, he said “We touch on many of the issues that I cover in the book. Tax strategy is a critical element of M&A so evaluating different acquisition strategies from a tax perspective can add substantial value to a transaction. Taxable acquisitions, tax-free acquisitions, cross-border acquisitions, LBOs, and similar transactions are looked at during the Institute and we’re looking to address up-to-the-minute changes.”
Thompson through the Penn State Center for Mergers and Acquisitions is committed to keeping the industry up-to-date on changes and emerging issues in M&A. “We’re already planning for our fall Corporate Institute on Mergers and Acquisitions and the treatise will have regular updates as regulations and the M&A landscape changes. It’s a very busy area.”