For years, litigation in most “deal” cases — involving negotiated, as opposed to hostile, acquisitions — has followed a rather predictable pattern.

A proposal was announced publicly. Lawsuits were filed, usually in Delaware or in the state in which the acquired company was headquartered. Maybe, there would be some skirmishing. There would be a few changes in disclosures or adjustments to minor deal terms. Plaintiffs would receive a (relatively) modest fee; defendants would obtain a release; the deal would go through; and all would go home.

This practice has been subject to criticism.

Some say plaintiffs’ counsel file knee-jerk strike suits to recover a fee that benefitted themselves and only themselves. Others point out that plaintiffs should, instead, litigate at least some of these cases more vigorously. Defendants have been criticized for “paying off” plaintiffs’ counsel, which winds up encouraging still more suits. Others go further and accuse defendants and plaintiffs of papering over occasional problematic transactions.

Despite these criticisms, this practice had its benefits — principally predictability. Tell a lawyer experienced in this area the type of case and overall fact pattern and you could get a good read on the “value” of the case. The litigation would not genuinely threaten the deal or the time and pocketbooks of defendants.

And cases would disappear from the court’s docket not long after fi ling, promoting “judicial economy” if nothing else.

Three recent cases, however, show that things may be changing, presenting new challenges — and less predictability — to all involved in corporate acquisitions.

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