This broad category covers both public company and private equity (including venture capital) matters. The chapter includes company acquisitions, dispositions and related financing arrangements, capitalizations, entity selection and formation, operating and partnership agreements, securities and governance matters. Also covers those transactions designed to help restructuring within companies and their subsidiaries by change of ownership. Priority is placed on primary representatives, those acting for buyers and sellers, whilst those acting for financial advisors, underwriters and the banks financing such transactions are also considered. Legal writing in this area is immense, as English is the Lingua Franca for M&A, from everything to negotiating terms to transitioning employees and assets to different work environments.
Solving Drafting/Editing Problems:
- Over-Formality – Generally, problems exist for both native and non-native English speakers when dealing with Corporate Law. The main problem is “over-formality.” Lawyers constantly deal with formal language and have knowledge of many concepts that aren’t obvious on the surface or “prima facie,” and yet fail to understand that 1) non-lawyers don’t understand Latin , 2) formal language although essential is ‘robotic’, and 3) it takes longer to read and digest formal language. This is not to say you should write informally to a client or colleague during an M&A. But having a “friendly” and “supportive” tone, while removing as much Latin and overly formal phrases that have little substance will improve your M&A legal drafting whether it’s an email to a client or legal brief to a partner.
- Correct Usage – With non-native speakers of English, some grammar and usage problems occur frequently when dealing with M&A. One of the main issues is the PAST, PRESENT, and FUTURE TENSES. Knowing when things occurred and what will occur is not so clear when we look at the use of the PRESENT PERFECT. For example, “The deal has been agreed, we are just waiting on the diligence report before signing.” This use of the present perfect indicates a specific point in the past ‘agreed’ but there are still some things unaccomplished, so the writer uses ‘has been’. If the agreement was finalized, the writer would say ‘was agreed on X date.’ If you write “the deal has been agreed on March 23rd” it is bad English. If you use a specific date, it’s past completed action. So, make sure if you’re involved in M&A you review your tenses, as well as looking at key aspects of PASSIVE/ACTIVE VOICE, VERB PARTICLES, PUNCTUATION and ARTICLE USAGE. Although these grammatical areas might not cause a fall out of the deal, they will surely make you look unprofessional and also cause confusion for readers.
Legal Writing Resources:
- Legal Writing EU’s free Commercial Law Glossary – 250 of the most frequent and important words and phrases. Also used as a twitter daily vocabulary practice tool.
- https://briefcatch.com – BriefCatch is a Word plug-in that offers editing suggestions that you can implement in real time. The program not only catches common mistakes but spots editing and advocacy opportunities that many lawyers and other writers miss.
- https://guides.library.sc.edu/c.php?g=410359&p=2797148 – University of South Carolina M&A Data Library.
- https://ukdiss.com/examples/m-and-a-as-a-growth-strategy.php – Writing on Concepts of Mergers and Acquisitions.
- https://corporatefinanceinstitute.com/resources/knowledge/deals/mergers-acquisitions-ma-process – CFI Overview of the M&A Process
Courses & Employers:
- https://www.hec.edu/en/certificates/mergers-and-acquisitions-certificate – HEC Paris, Certificate in Mergers & Acquisitions
- https://law.stanford.edu/education/degrees/advanced-degree-programs/llm-in-corporate-governance-practice/ – Stanford University, LLM in Corporate Governance
- https://www.lw.com/practices/MergersAndAcquisitions, Latham & Watkins – #1 Law Firm in M&
- Freshfields Bruckhaus Deringer Cyber Security Guide in M&A – One of the world’s leading firms on every list, Freshfields publishes great information ever year on multiple topics related to M&A. Interns and new associates also receive comprehensive training in Legal Drafting and Editing in English, and Freshfields is well-known for furthering their lawyers’ professional development.
- NYU LL.M in Corporate Law – New York University is a private university with an excellent reputation as a law school and also top-ranked in general. Their Corporate LL.M is focused on lawyers coming from foreign countries who want a US level LL.M, so it is a perfect blend of content that is relevant outside of the US while getting a prestigious LL.M from a US powerhouse.
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