Ulyana Bardyn

In many M&A transactions, the acquisition price is based on various financial metrics at the time of closing. But for transactions where closing occurs some time after the purchase agreement is signed (e.g., where regulatory approvals are needed as a closing condition), it is rarely (if ever) possible to know at the contract negotiation and signing phase exactly what these financial metrics will be at the closing date.

On June 13, 2022, the US Supreme Court decided ZF Automotive US, Inc. v. Luxshare, Ltd., No. 21-401, holding that Section 1782 requires a “foreign or international tribunal” be a tribunal imbued with governmental authority. The unanimous opinion brought an end to a long-standing circuit split about the availability of Section 1782 “in aid of” international commercial arbitration.

Amidst the ever-worsening onslaught of cyberattacks, companies are longing to go on the offensive, whether by “hacking-back” or by going after malicious actors in United States courts. While Congress has previously refused to enable the former, it now appears more open to the latter, particularly with the introduction of the Homeland and Cyber Threat Act (the HACT Act). But for companies, the best cyber defense will remain a strong defense, not a strong offense.