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Court Granted Provisional Injunction Against SM Entertainment’s Issuance of New Shares and Convertible Bonds

On February 7, 2023, SM ENTERTAINMENT (“SM”) resolved to issue new shares valued at around KRW 111.9 billion and convertible bonds amounting to around KRW 105.2 billion to KAKAO via a third-party allotment. In response, Mr. Lee Soo Man, SM’s former executive producer, filed for a provisional injunction against SM’s issuance of these new shares and convertible bonds, asserting that the resolution by SM’s current management was made in an unlawful attempt to influence the company’s control and governance.Indeed, Mr. Lee Soo Man’s motion for provisional injunction garnered significant attention both domestically and worldwide as it revealed the possibility of a management dispute between SM and KAKAO.Yoon & Yang, the legal counsel for Mr. Lee Soo Man, vigorously argued in its motion for the provisional injunction as follows: (i) The issuance of new shares and convertible bonds via a third-party allotment must be legitimately in line with the company’s managerial objectives; and (ii) the issuance should only be permitted if it is considered unavoidable even though it would infringe upon the preemptive rights of existing shareholders. However, (iii) SM’s issuance failed to satisfy the foregoing requirements.In particular, Yoon & Yang maintained that, given SM’s ample cash liquidity, SM lacked any compelling managerial need to raise funds from a third party in violation of the proportional interests of existing shareholders.  Further, Yoon & Yang asserted that SM lacked a valid basis for issuing such substantial amount of new shares and convertible bonds, which represent nearly 9.5% of SM’s total stake, through a third-party allotment.On March 3, 2023, the Seoul Eastern District Court accepted most of Yoon & Yang’s arguments and granted Mr. Lee Soo Man’s provisional injunction against SM’s issuance of new shares and convertible bonds. Specifically, the Court endorsed the arguments put forth by Yoon & Yang on the following grounds: (i) Considering SM’s managerial objectives, such as securing urgent funds, expanding business operations, and forming strategic partnerships, it cannot be readily concluded that SM had a compelling managerial need to allocate and issue new shares and convertible bonds to KAKAO in disregard of the preemptive rights of existing shareholders; and (ii) there is considerable cause for concern that issuing new shares and convertible bonds in a seemingly unfair manner or in violation of the Korean Commercial Code and SM’s Articles of Incorporation may adversely influence existing shareholders by potentially infringing upon their proportional interests or diluting their control in SM. Yoon & Yang now has successfully amassed a record of accomplishment in management disputes related to the issuance of new shares and convertible bonds allocated to third parties. In 2020, Yoon & Yang successfully defended Hanjin KAL against the motion for preliminary injunction by activist fund KCGI to prohibit Hanjin KAL from issuing new shares through a third-party allotment to the Korea Development Bank for the purpose of participating in the paid-in capital increase of Korean Air to acquire Asiana Airlines. 

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CENTERS

Digital Forensics Center

Grounded on Yoon & Yang’s chance to provide legal advice to a large domestic IT company that faced a lawsuit in the U.S., Yoon & Yang started to conduct forensic tasks in 2014, and launched the digital forensic center in September, 2019.
There are 45 professionals that are part of the Yoon & Yang digital forensic center, including Young Min Suh Esq., who is the center’s head, along with 27 partners, 3 forensic specialists and senior researchers, and approximately 15 professional reviewers.

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Information Security Center

In the era of the Fourth Industrial Revolution, information protection has become a core technology to all industries. The breach of personal information and confidential corporate information through cybersecurity incidents has now become so significant as to determine the very survival of the corporation, and managing the legal and technical risks of information security has now become a key aspect of corporate management. Yoon & Yang’s Information Security Center, led by its Director, is comprised of attorneys specializing in the protection of personal information.

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ESG Center

As an aftermath to the rapid change in the management atmosphere such as the rise of importance in the environment, capitalism of stakeholders, etc., that has occurred due to global climate change, ESG has now become an inevitable trait that companies must be equipped with, in order to maintain itself as a sustainable company. Yoon & Yang is providing tailored advice related to a variety of ESG issues covering companies’ future strategies, compliance, and enforcement that arise in this ESG era with its ESG professionals (attorneys and consultants, etc.) that specialize in environment, labor, information and human rights, green finance, anti-corruption, compliance, etc.

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Discovery Center

Yoon & Yang’s Discovery Center provides prompt and efficient document review and support to affiliated personnel’s interview/deposition processes in order to efficiently reduce the expenses that are put in the discovery process that is conducted as a response to the investigation, etc., conducted by the government entities or international organizations when domestic corporations engage in litigation and arbitration within Korea and overseas, and effectively manage a variety of discovery risks. For overseas disputes, the Discovery Center works with clients' legal teams to design discovery procedures tailored to the needs of clients and local law firms representing the clients overseas, and adopts a flexible and collaborative operating structure.

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Environmental Regulation Response Center

The Yoon & Yang Environmental Regulation Response Center is comprised of attorneys with expertise in environmental law and experts who have accumulated practical experience in environmental agencies. Based on our extensive advisory experience and understanding of policies, institutions, technologies, and industries, we provide comprehensive legal services including advice on all environmental laws and regulations, M&A due diligence, and response to administrative adjudication, administrative & civil litigation, and criminal punishment.

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Serious Accidents CPR Center

To assist corporations in establishing systems for serious accident preparedness, Yoon & Yang LLC now operates the Corporate Preparedness Review Center with experts from various fields, having entered into a strategic alliance with the Cadmus Group, a US Department of Homeland Security (DHS) contractor.
Taking advantage of the serious accidents prevention and response system successfully implemented by the Cadmus Group in the US and its vast industry and company data, the Yoon & Yang CPR Center provides its services based on scenarios tailored to Korean companies. This helps Korean companies prepare a robust and individualized preparedness system.

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  • ALB Korea Law Awards 2023
  • asialaw Awards 2021
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  • In-House Community (IHC) 2021 Firms of the Year
  • Asian Legal Business (ALB) Korea Law Awards 2021
  • ALB IP Rankings 2018-2022
  • The 4th Moneytoday Korea Legal Awards 2021
  • asialaw Awards 2020
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  • Asian Legal Business (ALB) Korea Law Awards 2020
  • The 3rd Moneytoday Korea Legal Awards 2020
  • GCR 100
  • The 2nd Moneytoday Korea Legal Awards 2019
  • International Tax Review (ITR) Asia Tax Awards 2019
  • The American Lawyer’s Asia 50 (2019)
  • ALB 2019 Asia’s Top 50 Largest Law Firms
  • FT Innovative Lawyers Report 2018
  • GCR Awards 2018
  • Taiwan M&A Awards 2019
  • Chambers & Partners Asia-Pacific 2018
  • Chambers & Partners Global 2018
  • The Legal 500 Asia Pacific 2017
  • ALB Korea Law Awards 2017
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