The US Court of Federal Claims awarded damages of more than $206 million to Plaintiffs/applicants in a case with respect to the cash grant under Section 1603 of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5). In its opinion, which was unsealed on Monday, October 31, the court held that the US Department of the Treasury had underpaid the Section 1603 Grants arising from projects in the Alta Wind Energy Center because it had incorrectly reduced Plaintiffs’ eligible basis in the projects. In a separate case in the Section 1603 Grant context, the court awarded $450,000 to GUSC Energy, Inc. in connection with a combined heat and power biomass facility.

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In May, the Federal Trade Commission (FTC) required Hikma Pharmaceuticals PLC to divest its 23 percent interest in Unimark Remedies, Ltd. and its US marketing rights to a generic drug under manufacture by Unimark as a condition to allowing Hikma to complete its acquisition of Roxane Laboratories. The FTC was concerned that Hikma’s continued holding of a 23 percent interest in Unimark after consummation of its proposed acquisition of Roxane would create the incentive and ability for Hikma to eliminate future competition between Roxane and Hikma/Unimark in the sale of generic flecainide tablets (a drug used to treat abnormally fast heart rhythms) in the United States.

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In the last two years, the Federal Trade Commission (FTC) and the Antitrust Division of the US Department of Justice (DOJ) brought, and won, several litigated merger cases by establishing narrow markets comprised of a subset of customers for a product. This narrow market theory, known as price discrimination market definition, allowed the agencies to allege markets in which the merging parties faced few rivals and, therefore, estimate high post-merger market shares.

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The Federal Trade Commission (FTC) and US Department of Justice’s (DOJ) Antitrust Division have been actively challenging mergers and acquisitions (M&A) across a variety of industries where there is not a viable or acceptable remedy to mitigate the agencies’ competitive concerns. Parties to M&A transactions that the FTC or the DOJ believe are likely to harm competition may remedy those concerns by divesting certain businesses or assets.

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McDermott Will & Emery has released the October 2015 issue of Inside M&A, which focuses on current issues surrounding special-purpose acquisition companies. Articles in this issue include:

Overview of SPACs and Latest Trends
A number of recent successful business combination transactions involving special-purpose acquisition companies (SPACs) led by prominent sponsors have driven a resurgence in the SPAC inital public offering (IPO) market and an evolution in some SPAC terms. In this article, we provide an overview of SPACs and discuss the latest trends in SPAC structures and terms.

Creative Business Combination Structures Allow SPACs to Successfully Compete with Non-SPAC Bidders
Certain structural features of SPACs that offer benefits to their public investors often put SPACs at a competitive dis-advantage when they are among multiple bidders for a target company. Recent SPAC business combination transactions demonstrate, however, that careful structuring of a transaction to meet the needs of the target’s owners can overcome these structural challenges and level the playing field for SPACs in a competitive bidding process.

SPAC Directors Cannot Take the Protection of the Business Judgment Rule for Granted
A recent decision by the New York State Supreme Court’s Commercial Division—in AP Services, LLP v. Lobell, et al., No. 651613/12—suggests that certain structural terms of SPACs may make it more challenging for the business judgment rule to apply to decisions by SPAC directors to enter into agreements for business combination transactions.

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The latest analysis by PitchBook would indicate buyout activity is trending down as deal volume and values continue to slide from recent quarters. In the latest report, the triggers for the current market is discussed covering EBITA multiples, debt levels and valuations, as well as where opportunities exist based on the transactional activities of private equity funds.

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McDermott Will & Emery recently published its latest issue of International News, which covers a range of legal developments of interest to those operating internationally. This issue focuses on Private Equity.

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Focus on Private Equity

The Impact of Regulatory Changes on Private Equity Firms

Taking Advantage of the Consequences of Delisting or Downlisting in Germany

Equity Bridge Facilities and the French Private Equity Market

Will Private Equity Bet on the Price of Oil?

Private equity often looks to control costs in its portfolio companies through the utilization of joint employees. This On The Subject provides tips and guidelines for private equity firms and their operating companies during a review of its employee classification.

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