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Carl Barnes Comments on Earnout Disputes in Startup Acquisitions in Wall Street Journal 09/05/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Life Sciences, M&A.
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CFB Headshot Photo 2015 (M0846497xB1386)The Wall Street Journal article “Rise of ‘Earnouts’ Muddies M&A Waters” discusses the increasing landscape of earnout agreements in startup acquisitions. As the article states, earnout agreements are often used in order to settle differences over a company’s valuation, but are frequently leading to disputes over milestone payments. MBBP corporate partner Carl Barnes remarks that:

Concern about the potential for earnout disputes is leading startups to take proactive measures, such as creating escrow accounts to fund legal battles. Typically, funds for the escrow come off the top of the cash paid up front. If the funds are never used, they are disbursed to shareholders.”

Additional measures involve how the earnout agreements are initially structured and negotiated within the deal. For more information, read the full article.

Carl Barnes Quoted in BloombergPolitics on Rex Tillerson Email Probe 03/15/2017

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CFB Headshot Photo 2015 (M0846497xB1386)In the investigation into the accuracy of Exxon Mobil’s statements regarding the possible effects of climate change on the company, an email alias of former CEO Rex Tillerson, now Secretary of State, was discovered.

In BloombergPolitics article “Tillerson May Face Deposition About ‘Wayne Tracker’ Alias Emails“, MBBP corporate partner Carl Barnes weighs in on whether or not someone in Exxon’s general counsel’s office knew about the alias account. Carl, a former corporate general counsel, states that someone did, or should have known, about the alias email account, and that,

“If they did not know, or if they failed to bring it to the attention of the litigation team producing documents in response to the court order, that does indicate an ethical and corporate governance failure.”

While Exxon claims that it was forthcoming about the alias email account, it is more likely that Tillerson will be questioned under oath in the probe of the accuracy of its climate change statements since the discovery of the account. For more information, read the BloombergPolitics article.

NYSE’s Corporate Board Member Online Magazine Brings in MBBP’s Carl Barnes for Insights on D&O Liability 11/17/2016

Posted by Morse Barnes-Brown Pendleton in Attorney News, Corporate, Financial Services, Litigation, M&A.
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CFB Headshot Photo 2015 (M0846497xB1386)NYSE‘s publication, Corporate Board Member, has recently published an article, “Sidestepping D&O Liability”. This piece brings to light the year 2015 as a record-breaking one for securities litigation against directors and officers, and how this trend is continuing into 2016. The level of whistleblower activity has significantly increased, as exemplified by the astonishing 119 filings of new federal class-action securities cases, and complementing this increase is the substantial decrease in the settlement sizes of these suits.

MBBP’s Carl Barnes, who specializes in director and officer liability, was asked to discuss precautions and to offer his counsel on this subject. Throughout the article, Carl is often cited offering advice on the various types of director liability and the methods in which to avoid litigation. Carl explains that directors are under fierce scrutiny in order to ascertain whether or not they have satisfied their duty of care, as this is the item that drives litigation. In order to minimize, or even avoid, liability altogether, Carl advises that directors be “actively involved, ask questions, and demand answers.” In a post-Enron world, directors need to be vigilant in order to avoid being liable, and the counsel that Carl offers may help directors and officers dismiss litigation quickly and perhaps even avoid it entirely. For more information, check out the full article.

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