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.

Mayer Brown explains how a Delta Air earnings call led to an antitrust class action.

The Washington Post profiles SEC Chair Mary Schapiro. My main takeaway: her job is all about brand management.

Nice overview from MoFo on 3(a)(9) exchange offers.

“A Simple Theory of the Financial Crisis:” Short and thought-provoking. Such as: “Market participation involves a selection bias in favor of the over-confident.”

And finally, to as you wait for the SEC to finally finish its shareholder access proposing release, here’s a shareholder access haiku to keep you company:

Green shoots of access,

But clouds gather. What’s that chill?

Lipton’s tea party.

But I do have concerns with the whole Twitter thing.

For one, there’s the self-consciously-cute Tweety bird-inspired name, and how it tempts the weaker-willed among its users to start inserting “tw” before words where it does not belong. For instance, on Twitter a “trend” quickly becomes a “twend.” Bruce Carton is vigilant in stamping out these twendencies (damn, it’s even affecting me!), but one has to wonder whether this Twitter thing, or twing, is just so virulent that it would be best for the civilization if we just pulled the plug and shut it down.

When you log into Twitter, it asks you “What are you doing?” My first thought is “none of your business.” I’m mature and self-aware enough to know that no one cares what I am doing. And if you do, you shouldn’t.

I guess I just don’t get the Twitter mentality. Something about its breezy content-free instant-gratification self-centered ethos rubs me the wrong way. So instead I just post links. While this works for me, it is an uneasy accommodation.

As I agonize over this philosophical quandary, I’ve decided to repost my Twitter links here a few times each week for the benefit of those of you who don’t see yourselves becoming twits. So here, ripped from the pages of my Twitter feed, are some of my recent tweets:

Duke Law student takes on Milberg Weiss, former partner fires back. My question: Was the DOJ’s investigation really “beside the point”?

The Atlantic: “Do CEOs Matter?” Cites Great Man Theory to explain. Sounds familiar?

Why put an outside CEO on your company’s board? To boost your company’s status, not its performance. So says this paper.

Ezra Klein: boards have escaped blame because of the “soft bigotry of low expectations.” But I doubt they’ll escape.

James Surowiecki in the New Yorker: resurrects Gilson and Kraakman’s call for the creation of a “cadre of full-time directors.” But don’t we pretty much have that already?