Simpson Thacher survey of recent public M&A deals finds that the dichotomy between PE and strategic buyers is disappearing: optionality for all? Maybe not: the DealProf discusses the recent BankRate deal here, suggesting it may be a new model for PE deals by stripping out acquirer’s optionality. The BankRate deal docs are available here.

Ouch! Executive pays $1.4m HSR fine after his counsel relies on PNO interpretations without calling PNO to confirm they are current. K&L Gates reminds us of the need to talk to the PNO. This may say more about the quality of the PNO’s published interpretations than it does about the quality of the counseling. 

Skadden’s Peter Atkins offers an excellent overview of the corporate governance forest, asks the difficult questions. In doing so he avoids the Wachtellian hysterical hyperbolism that so often clouds this debate.

S&S on the “Cuban Missive Crisis”. I am a sucker for a clever title.

The SEC cracks down on a $197m fraud, in the process raising the question of whether an investor can reasonably expect anything other than fraud when investing in a company called Radical Bunny LLC.

Milbank offers a concise overview of debt exchange offers. My take: hot topic, more common, but still rare because it’s so unwieldy compared to the alternatives and carries a stigma.

A&P article on the jurisdictional basis for the recent Siemens FCPA action: longest “virtually any transaction anywhere in the world, no matter how tangentially (if at all) it touches the US, can give rise to allegations of FCPA violations.” Longest long-arm ever?

O’Melveny memo on HSR filings required by stock grants to directors and officers. This is an oft unspotted issue. The FTC’s way of saying you have too much equity.

Nice survey by GDC of recent NPAs and DPAs with DOJ. Here’s hoping you never need this.

Another helpful survey from GDC: It reviewed bid documents made available under FOIA to figure out how the FDIC chose the winning bidder for BankUnited.

Wisdom from Strine: the “fact that something is cool doesn’t mean a court should decide it.” From Emulex transcript available at Deal Prof.

Michael Lewis on AIGFP. An unexamined crisis is not worth having. What governance model would prevent this? Mulling over this article, I keep thinking of William Goldman’s adage “no one knows anything.”

Is a new “bankslaughter” crime the answer? It is popular to criminalize stupidity, but once you start where do you stop? And it would also criminalize risk.

MoFo treatise on tender offer issues in debt buybacks and exchanges. Appears to be by Dave Lynn.

FINRA provides free bond pricing data for corporate and other issuers. Now those of us without Bloomberg terminals on our desks can check the credit market’s opinion of a company in seconds.

Useful overview from STB of recent indenture-related cases, including Amylin, Petrohawk and BearingPoint.

Helpful overview from DLA of at-the-market offerings. Unlike some current practices memos, this one actually includes a list of recent deals. That should be a required feature in any current practices memo.

FT’s Martin Wolf on why Obama’s White Paper won’t work: Too big to fail = Implicit government guarantee of  debt = Irresistable temptation to amp up the leverage on risky bets.

Davis Polk’s “New Foundations” memo on Obama’s White Paper is nearly as long as the White Paper itself, but it’s the best memo on this I’ve seen so far.

A&O lawyer muses on trusts and their role in the financial crisis. Takes us back to Roman times. My favorite feature: a world map color-coded by the strength of each country’s trust laws. Very cool.

Lowenstein Sandler surveys some recent earn-out cases. Lesson 1: Courts find damages for breaching earn-outs too speculative, so you need to specify liquidated damages. Lesson 2: Earn-outs are really hard to draft, even when the Seller remains in control of the business after closing. Forget about it when Seller leaves at closing. Lesson 3: “A Seller should not agree to an earn-out unless the Seller is willing to accept the risk that the purchase price paid at closing will turn out to be the sole consideration to be received in connection with the transaction.” That last one may be the Golden Rule of Earn-Outs.

Sign of the Times: Weil Gotshal memo questions “blind” contract compliance, says look for opportunities for efficient breach.

Sign of the Times II: Alston & Bird memo on how to draft an effective forbearance agreement.

Goodwin’s thoughtful take on the flaws General Growth’s bankruptcy revealed in the CMBS bankruptcy remote structure, and what can be done differently if the securitization market ever returns.

Katten memo on interesting Delaware case: Does DGCL 142 allow a bylaw that gives stockholders the direct right to remove the CEO and other officers? Makes the SEC’s direct nomination proposal look tame by comparison.

In “Change of Control – Is It or Isn’t It?” Weil Gotshal offers an overview of the change in control definition you typically see in a debt instrument’s change in control put, highlighting some of the key drafting challenges.

In “Court Decision Raises Questions as to Interpretation and Validity of ‘Continuing Director’ Change in Control Provisions,” Cleary Gottlieb discusses the recent Amylin case in which the continuing director prong of a change in control definition put a company’s board in the awkward position of, at the same time, actively opposing a dissident slate and having to approve that same slate. The board approved the slate in order to avoid triggering the continuing director prong of its change in control definition. But in order to avoid a contractual change in control the board may have fostered a real change in control.

Together these two memos illustrate the complexity that lurks beneath ostensibly simple provisions.

Just a few years ago, client memos were a slightly embarrassing backwater of the legal scene, high-level spam with fancy formatting ghost-written by bored associates for their partner overseers, egged on law firm marketing consultants, all in a feeble attempt at public chest-thumping (we know something! hire us!) that was undermined by the blizzard of other client memos that simultaneously inundated our inboxes, all saying the same thing at the same time to the same people.

Alas, this still describes most client memos. Does the world need another memo on the Lyondell decision? Must every TARP press release be separately summarized by 47 law firms? Do even the Albanians care about those recent changes to the Albanian securities code?

But last year, just as many of our colleagues started staring at phones that no longer rang, I noticed a distinct uptick in the quantity of high quality memos. These new style memos stood out because they were better written, evinced the deeper understanding of lawyers who’d spent years in the trenches and often looked beyond the headlines of the day for their subjects. As I found myself saving more and more of these memos for future reference, I began to appreciate that they were carving a place for themselves in the pantheon of corporate jurisprudence, in authority and usefulness fully capable of standing in the same room as statutes, rules, C&DIs, Chancery opinions and Broc’s blog.

So each week I sift through fifty or so memos, searching for the occasional nugget. As I sift, I’ll report my more interesting finds in real-time on my Twitter feed. And, as a tribute to the unsung heroes slaving away for our benefit, each week I plan to list here my favorite finds from the previous week.

Without further ado, and in no particular order, here are my nominees for Best Client Memo I Read Last Week:

“Federal Trade Commission Makes Inquiries Into Interlocking Boards” (Simpson Thacher, May 5, 2009). Within a day after the New York Times reported the FTC was examining interlocks between the Apple and Google boards, Simpson Thacher circulated this brief summary of the legal standards behind the news. A good client memos does not have to be a term paper; sometimes all we need is something timely and to the point.

“Raising Equity in Troubled Times: A Survey of Financing Alternatives and Legal Issues” (Milbank Tweed, May 2009). This is actually an article that the firm recirculated as a client memo. It doesn’t matter to me how it originated, all that matters is whether it’s useful. This exemplifies the new breed, providing a real world survey of what is actually going on in the trenches (such as they are these days).

“Corporate Governance of Delaware Corporations: Delaware Adopts Amendments to the Delaware General Corporation Law Relating to Corporate Governance” (Sullivan & Cromwell, April 28, 2009). It seems there’ve been a thousand memos describing the recent proxy-related amendments to the DGCL. In this memo S&C does a good job summarizing these changes and, more importantly, relating them to other changes that have occurred and are expected to occur in the proxy solicitation process.

If you’d like me to consider your firm’s memos for future installments of this feature, please add providedhowever (all one word, no punctuation) at gmail dot com to your firm’s mailing list.

A few firms still circulate client memos exclusively to clients (imagine that!), and do not make them publicly-available. Even when I obtain those memos (I have my ways), I will respect their decision not to make them available to the rest of us. Seeing little point in drawing your attention to memos you can’t read, I won’t bother listing them here.