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On July 12, 2022, Twitter, Inc. brought a civil action in the Delaware Court of Chancery against Elon Musk, the co-founder and CEO of Tesla Motors, Inc., for breach of contract in an attempt to force Musk to complete his...more
Few lawyers would question the need to keep their clients apprised of negotiations with enforcers, particularly where merger approval hinges in the balance. A recent federal district court ruling, however, serves as a...more
We focus on two H2 2019 rulings that could affect M&A transactions in the future. Genuine Parts: Acceptance of termination fee does not prevent further remedies - In September 2019, the Delaware Chancery Court refused to...more
As is the case in most merger transactions, both the buyer and seller retain their own counsel. Generally speaking, pre-closing communications between the buyer or seller and their counsel are subject to the attorney-client...more
The first half of 2019 saw several decisions from the Delaware courts that will affect M&A dealmaking - Aruba: Supreme Court awards "deal price less synergies" in closely watched appraisal case - Rejecting the Chancery...more
Shareholder Representative Services LLC v. RSI Holdco, LLC, C.A. No. 2018-0517-KSJM (Del. Ch. May 29, 2019). This decision confirms that, in a post-merger dispute between an acquirer and the selling stockholders, broad...more
Preserving privilege with respect to pre-closing communications between a selling corporation’s counsel and its management is an important negotiation point in many transactions, so that the seller can prevent the buyer from...more
The Delaware Court of Chancery recently upheld a provision in a merger agreement that prevented the buyer from using privileged emails between the seller and its attorneys in post-closing litigation. The decision, in...more
In Shareholder Representative Services LLC v. RSI Holdco, LLC, No. 2018-0517-KSJM, 2019 WL 2290916 (Del. Ch. May 29, 2019), the Delaware Court of Chancery reaffirmed that a target company may protect its pre-merger privileged...more
Last week, Vice Chancellor Kathaleen S. McCormick of the Delaware Court of Chancery issued a decision, Shareholder Representative Services LLC v. RSI Holdco, LLC, addressing when a selling company's attorney-client privilege...more
On May 29, 2019 in Shareholder Representative Services, LLC v. RSI Holdco, LLC, the Delaware Court of Chancery, by giving effect to a merger agreement provision, reemphasized the guidance it gave in Great Hill Equity Partners...more
On May 29, 2019, Vice Chancellor Kathaleen S. McCormick of the Delaware Court of Chancery ruled that plaintiff Shareholder Representative Services LLC (“Shareholder Representative”) as the designated representative of Radixx...more
The Delaware Court of Chancery recently issued an opinion driving home the point, once again, that attention should be paid to contractually providing for the retention of the attorney-client privilege by the selling company...more
In Shareholder Representative Services LLC v. RSI Holdco, LLC et al, the Delaware Court of Chancery considered when a buyer can use the acquired company’s privileged pre-merger attorney-client communications in post-closing...more
On July 27, 2017, Vice Chancellor Joseph R. Slights III of the Delaware Court of Chancery found that stockholder plaintiffs had not satisfied their burden of showing “good cause” under the Garner fiduciary exception to the...more
Last week's Privilege Point described diversity cases in which litigants did not address the choice of laws issue, and in which the issue was irrelevant because there appeared to be no material difference between the...more
On June 9, 2016, a divided New York Court of Appeals in a much-anticipated ruling held that the attorney-client privilege can only be maintained for communications involving third parties in situations where litigation is...more
In a recent decision, the Appellate Division of the Supreme Court of New York, First Judicial Department, broke with other New York courts and joined Delaware and federal courts in applying the common-interest privilege to...more
A recent Delaware Chancery Court opinion highlights the risk to sellers and their advisors that pre-closing communications could become evidence in a post-closing lawsuit related to the transaction. The opinion, Great Hill...more