Gail Weinstein is a Senior Counsel, Philip Richter is a Partner and Co-Head of the M&A and Private Equity Practice, and Steven Epstein is the Managing Partner at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Ms. Weinstein, Mr. Richter, Mr. Epstein, Roy Tannenbaum, Adam Cohen, and Liza Andrews, and is part of the Delaware Law Series; links to other posts in the series are available here.
Key Points
- The decision clarifies that a party’s using a contractual gap to “intentionally harm” the counterparty may constitute a breach of the implied covenant. The court rejected ASM’s argument that the parties had intentionally left a contractual gap with respect to the efforts ASM had to use to obtain the consents, in order to allocate the risk to the Vendor of the landlords not giving the consent for any reason. The court stated that, at the pleading stage, it was reasonably conceivable that, without a standard of efforts set forth in the agreement, ASM could have been neutral with the landlords, but, based on the implied covenant, could not use the contractual gap to “intentionally harm” the Vendor.
- The decision underscores the need for careful drafting of third party consent conditions. Parties should consider whether to specify in their agreement a standard of efforts for obtaining such consents and may wish to specify the extent to which the other party can participate in the process of seeking to obtain them. Where a standard of efforts is not set forth, the party responsible for seeking a consent should keep in mind that, depending on the specific facts and circumstances, advocating for the third party not to give the consent may be considered to be intentionally harming the counterparty and thus a breach of the implied covenant.
This year marks the 50th anniversary of the OECD’s Guidelines For Multinational Corporations For Responsible Business Conduct, a set of principles to which the United States, the other OECD nations, and additional signatories totaling 52 nations comprising nearly two-thirds of the world’s economic activity and the bulk of market-based, democratic nations, adhere. In this condensed set of remarks, the longer version of which can be found 
Comment Letter on the SEC’s Proposal to Replace Quarterly Reporting with Semiannual Reporting
More from: Carine Smith Ihenacho, Snorre Gjerde, Norges Bank
Carine Smith Ihenacho is the Chief Governance and Compliance Officer and Snorre Gjerde is the Lead Investment Stewardship Manager at Norges Bank Investment Management. This post is based on their SEC comment letter.
We refer to the Securities and Exchange Commission (SEC)’s request for comment on the proposed amendments to allow companies to file semiannual reports on new Form 10-S in lieu of quarterly reports on Form 10-Q to meet their interim reporting obligations under the Securities Exchange Act of 1934. We appreciate the opportunity to contribute our perspective.
Norges Bank Investment Management (NBIM) is the investment management division of the Norwegian Central Bank that manages the Norwegian Government Pension Fund Global. We work to safeguard and build financial wealth for future generations. As of year-end 2025, we managed over 2 trillion USD in assets, with the United States representing our largest market at 53% of total investments. Within our equity portfolio, 822 billion USD was invested in shares of 1,306 U.S. public companies. We are a minority shareholder in U.S. public companies, with an average equity ownership of 1.18 percent.
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