Chapter 83 Mergers and Acquisitions - Fried Frank from Chapt… · Mergers and Acquisitions by William G. McGuinness and Scott B. Luftglass * I. INTRODUCTION § 83:1 Scope note II

Chapter 83

Mergers and Acquisitions

by William G. McGuinness and Scott B. Luftglass*

I. INTRODUCTION

§ 83:1 Scope note

II. PRELIMINARY CONSIDERATIONS ANDSTRATEGIC OBJECTIVES

§ 83:2 Overview§ 83:3 —Distinctive characteristics of mergers and

acquisitions litigation§ 83:4 Issues for representing target companies§ 83:5 Issues for representing hostile bidders§ 83:6 Issues for representing friendly merger partners and

“white knights”§ 83:7 Issues regarding other shareholders of a target

company

III. JURISDICTION AND VENUE

§ 83:8 Overview§ 83:9 Grounds for federal jurisdiction§ 83:10 Venue issues

IV. FEDERAL SECURITIES LAW CLAIMS

§ 83:11 Overview§ 83:12 Procedural issues§ 83:13 Impact of securities laws’ focus on disclosure rather

than substantive merits of transactions

V. PARTICULAR FEDERAL LAW CLAIMS

1. CLAIMS UNDER § 13(D) OF THE EXCHANGEACT

§ 83:14 Overview

*The authors acknowledge, with great appreciation, the substantial andvaluable contributions of our colleagues, Samuel P. Groner and Shannon N.Doherty, in the preparation of this chapter.

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Excerpt (§§ 83:1 to 83:7) reprinted with permission from Haig, Business and Commercial Litigation in Federal Courts, Fourth Edition §§ 83:1 et seq. © 2016 American Bar Association For more information about this publication, please visit http://legalsolutions.thomsonreuters.com/.

§ 83:15 Who may sue§ 83:16 Commonly litigated issues§ 83:17 Deciding when to bring a § 13(d) claim§ 83:18 Forms of injunctive relief available§ 83:19 Mooting § 13(d) claims by making preemptive

additional public disclosure§ 83:20 Timing and scope of court-ordered corrective

disclosure§ 83:21 Proposed reform of § 13(d)

2. CLAIMS UNDER § 14(A) OF THE EXCHANGEACT

§ 83:22 Overview§ 83:23 Distinctive liability issues in § 14(a) litigation§ 83:24 Types of injunctive relief available in § 14(a) litigation§ 83:25 Injunctions requiring specified means of

dissemination of corrective disclosure§ 83:26 Injunctions requiring delay in date of shareholder

meeting or other deadline§ 83:27 Injunctions requiring resolicitation§ 83:28 Impact of ongoing contest on nature of injunctive

relief

3. CLAIMS UNDER SECTIONS 14(D) AND 14(E) OFTHE EXCHANGE ACT

§ 83:29 Overview§ 83:30 Who may sue§ 83:31 Liability issues arising in § 14(e) claims§ 83:32 Common factual disputes in § 14(e) claims§ 83:33 Injunctive relief available for § 14(e) claims

4. OTHER FEDERAL CLAIMS

§ 83:34 Antitrust claims§ 83:35 Takings clause§ 83:36 Constitutional challenges to state anti-takeover

statutes§ 83:37 —Commerce Clause challenges§ 83:38 —Preemption challenges§ 83:39 —Other potentially relevant federal statutes§ 83:40 Litigation under Section 10(b)

VI. STATE LAW CLAIMS

§ 83:41 General standards applicable to anti-takeovermeasures

§ 83:42 “Poison pills”

BUSINESS AND COMMERCIAL LITIGATION 4TH

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§ 83:43 Deal protection devices

VII. DISCOVERY ISSUES

§ 83:44 Motions for expedited discovery

§ 83:45 Impact of Private Securities Litigation Reform Act

§ 83:46 Immunity from discovery of business strategy or“white knight” information

VIII. PRACTICE AIDS

§ 83:47 Checklist: essential allegations and defenses

§ 83:48 Checklist: sources of proof of essential allegations anddefenses

§ 83:49 Form: illustrative pleadings—Complaint

KeyCiteL: Cases and other legal materials listed in KeyCite Scope can beresearched through the KeyCite service on WestlawL. Use KeyCite to checkcitations for form, parallel references, prior and later history, and comprehen-sive citator information, including citations to other decisions and secondarymaterials.

I. INTRODUCTION

§ 83:1 Scope note

This chapter discusses federal court litigation that may arise inconnection with potential transactions involving corporate merg-ers or acquisitions (often referred to as “M&A” transactions).This type of litigation generally falls into two broad categories: (i)litigation between two entities arising out of a contested effort byone entity to acquire control of the other (so-called “hostiletakeovers”); and (ii) litigation by a company’s shareholders chal-lenging an agreement by the company to merge with or beacquired by another company (so-called “friendly deals”). Whilethe focus of this chapter primarily is on litigation relating tohostile takeovers (which, compared to shareholder litigation, ismore likely to be filed in federal court), the principles discussedmay apply in any situation where the assistance of the federalcourts is sought in either facilitating or hindering a proposedtransaction, including shareholder litigation challenging friendlydeals. We note that a substantial amount of M&A litigation islitigated in state court, with the controlling issues (generallyclaims that a company’s board of directors breached its fiduciary

§ 83:1MERGERS AND ACQUISITIONS

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duties)1 governed by the state law of the state in which thecompany is incorporated. Given that a large percentage of publiccompanies are incorporated in Delaware, the Court of Chanceryof the State of Delaware, a specialized court that focuses oncorporate litigation, hears and decides the greatest number ofM&A litigation cases.

This chapter’s focus primarily will be on litigation of federallaw claims (including securities,2 antitrust,3 and constitutional4

claims) which are more typically litigated in federal court, withsome attention to the state-law issues which may arise in federalcourt as pendent claims or due to the existence of diversityjurisdiction.5

Because litigation in this context typically occurs while offersfor an entity are pending, the chapter focuses primarily on litiga-tion seeking injunctive relief before a proposed transaction hasclosed. Actions seeking damages with respect to a transactionthat has already been consummated generally lack many of thedistinctive characteristics of the litigation discussed herein.

In addition to general strategic considerations,6 the chapterdiscusses special issues related to jurisdiction and venue,7 thetypes of statutory and common-law claims often made in litiga-tion of this type, and some issues that typically arise with respectto discovery in such litigation.8

II. PRELIMINARY CONSIDERATIONS AND STRATEGICOBJECTIVES

§ 83:2 Overview

M&A litigation necessarily will involve a proposed transactionof some sort (sometimes multiple rival proposals being pursuedat once), although in some instances litigation will commencebefore any transaction actually is proposed. A classic example isa “hostile takeover” where the shareholders of one company(referred to as the “target”) are offered cash, shares of stock inthe bidder, or a mix of cash and stock consideration to tender

[Section 83:1]1See Chapter 82 “Director and Officer Liability” (§§ 82:1 et seq.); Chapter

116 “Fiduciary Duty Litigation” (§§ 116:1 et seq.).2See §§ 83:14 to 83:33.3See § 83:34.4See §§ 83:35 to 83:39.5See §§ 83:41 to 83:43.6See §§ 83:2 to 83:7.7See §§ 83:8 to 83:10.8See §§ 83:44 to 83:46.

§ 83:1 BUSINESS AND COMMERCIAL LITIGATION 4TH

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their stock to a bidder so that the bidder can obtain control of thetarget (possibly to continue to operate it as a freestandingcompany, possibly to merge it with another entity, possibly topursue some other strategy, such as selling its assets offpiecemeal). Two other not-infrequent scenarios are a friendlytransaction between two companies (requiring shareholder ap-proval) which a third party wants to “bust up” because it wishesto acquire or otherwise pursue a transaction with one of themerger partners (but not with the combined entity), and afriendly transaction with a so-called “white knight” that is onlynegotiated after a hostile bid has been made and is presented tothe target’s shareholders as an alternative. Yet another permuta-tion is an extraordinary transaction such as a recapitalization ormanagement-led leveraged buy-out. In such a transaction, thecompany’s current shareholders are offered some sort of consider-ation (again, in cash, stock, or a mix) in return for giving upsome or all of their ongoing equity interest in the company. Itmay be the case that some shareholders (and/or an outside thirdparty wishing to propose a rival transaction) are dissatisfied withthe terms offered. Sometimes litigation focuses on a preparatorystep for such a transaction, such as a contested election for thetarget corporation’s board of directors or the amendment of acorporate charter or bylaws, with the outcome of the electionlikely to affect whether the transaction will be viable or not. Inother instances, litigation may arise when a potential bidder hasnot yet disclosed an interest in pursuing a transaction, but ap-pears to be accumulating a significant position in the targetcompany’s stock as a prelude to such an announcement. Some-times a client and its advisers may have a very specific goal theyhope litigation might be able to achieve, for example, invalidationof a specific bylaw which will impede the proposed transaction.Other times they may have a general business goal without anypreconceived notion of what litigation theories might best achieveit—for example, to delay as long as possible the date on whichthe target’s shareholders could effectively convey control to a bid-der, in order to provide an opportunity to devise an alternative tothe pending bid.

The role of litigators in M&A transactions and corporategovernance disputes has changed dramatically over the lastdecade. In the past, litigators would have very little time to learnthe essentials of the proposed transaction and the possible litiga-tion issues presented before they found themselves in court.Where corporate lawyers from their firm already were workingon the matter, litigators would rush to confer with their col-leagues and get up to speed.

However, in recent years, the increased frequency of M&A liti-gation (particularly shareholder litigation filed in state court) has


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resulted in firms adopting a more integrated model of involvinglitigators early on in the planning for a potential transaction, sothat they may, among other things, help develop and build therecord (which record they later will need to defend or rely uponin litigation) and provide real-time advice on transactionstructure, litigation risk strategy, and overall tactics. Indeed,more and more often, litigators stand shoulder to shoulder withtheir corporate brethren in presenting alternatives to and advis-ing clients and developing the transaction or transaction strategy.

Regardless of whether they are involved in a potential transac-tion prior to—or after—a litigation has been filed, litigators mustbe familiar with a core set of documents. These documents typi-cally will include:

(1) the merger agreement, any voting agreements, or other de-finitive transaction agreements relating to the proposedtransaction;

(2) the board minutes and presentations by advisors relatingto the proposed transaction;

(3) SEC filings relating to the proposed transaction;(4) press releases relating to the proposed transaction;(5) other SEC filings (relating to the target’s recent financial

results, or relating to a bidder’s stock holdings in the target,for example); and

(6) potentially relevant provisions from the target’s corporatecharter and bylaws.

Indeed, as noted above, the litigators may have been involvedin the creation of these materials.

The litigators also will need to understand the timeframe forthe proposed transaction and which actions will be required bywhich constituencies at which point in time in order to move theproposed transaction forward. Upcoming deadlines (such as theexpiration date of a tender offer, the date of a shareholders meet-ing, or the date by which candidates must be nominated for aforthcoming election of directors) will have a dramatic impact onwhen litigation must be commenced and what schedule will benecessary in the litigation if it is to have a chance of providingmeaningful relief. It is important not only to understand whatthe deadlines are but to understand where they come from—forexample, is there a legal requirement that X must occur a speci-fied minimum number of days before Y can occur or are the cur-rent deadlines based on tactical or business considerations whichmay afford more flexibility? It is likewise important to understandwho has the power to modify the relevant deadlines and by whatprocess. For example, may a majority (or supermajority) of thecompany’s shareholders take action by written consent withoutthe need for a shareholders’ meeting to be called? If so, that may


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dramatically affect the significance of the annual meeting andmay make a number of alternative procedural avenues availablefor parties to pursue their goals. From a client managementperspective, it is important for litigators to work with clients tofully appreciate the often expedited nature of M&A litigation,which proceeds on a timetable driven by the timing of theproposed transaction (or corporate event), and not on the typicaltimetable that typical civil or commercial litigation would follow.

Similarly, it is important to understand what conditions mustbe satisfied before the proposed transaction can be effectuated,what is driving them, and which if any are likely to be seriousobstacles. For example, a tender offer will generally not beconditioned on literally 100% of the shares being tendered, butwill typically specify a minimum percentage. It may be importantto understand whether the percentage condition of the particularoffer is being driven by business considerations (which mayprovide room for flexibility if circumstances change) or specificlegal considerations, such as the ability to use a particular ac-counting treatment for the acquisition, or the ability subsequentlyto use a simple “short-form” merger to “freeze out” whatevershareholders had not voluntarily tendered their shares. Virtuallyevery proposed transaction will be contingent on receiving ap-propriate regulatory clearance as to antitrust matters,1 but itmay be important to know whether this is one of the vast major-ity of transactions where that clearance will be merely a formal-ity or one of the subset where it raises substantial issues.

Finally, perhaps the most important focus for an M&A litigatoris to fully understand the business arguments for and againstany proposed transaction—both in order to craft an effectivestrategy and to present the most compelling legal arguments incourt. Indeed, these business arguments affect every aspect of anM&A litigation. For example, if the cash consideration offered ina tender offer is a substantial premium to the recent marketprice of the company’s stock, what if any arguments are availablethat the market price is depressed as a result of temporary condi-tions and that shareholders will do better to hold their stockrather than give the acquirer all of the future upside? If a mergeris contemplated, how dependent are its benefits on cost savingsor synergies? How plausible are the assumptions as to the exis-tence or magnitude of those savings or synergies? Who (as be-tween the target’s current shareholders and the bidder’s currentshareholders) will bear the brunt of the economic impact if thetransaction is consummated but proves less beneficial than

[Section 83:2]1See Chapter 75 “Antitrust” (§§ 75:1 et seq.).


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hoped?It is likewise important to understand what comparisons can

be made between two rival proposed transactions. Comparing acash offer of $30 per share to a cash offer of $35 per share isstraightforward enough, all else being equal, but often rivaltransactions are sufficiently different in structure that each canhave some claim to offer superior value to the other, dependingon what assumptions are made. For example, one proposal mightbe a tax-free exchange while a rival proposal might trigger imme-diate capital gains tax liability for tendering shareholders which,depending on their specific individual tax situations, might besufficient to wipe out the higher nominal dollar number attachedto the bid. When the consideration offered consists of new securi-ties rather than cash, any estimate of the value being offeredobviously will be subject to all of the uncertainty associated withpredicting the future value of any stock, and when the securitiesto be received will be stock in a new post-merger entity whichwill be substantially different from either the bidder or targetstanding alone, those uncertainties are further heightened.2

§ 83:3 Overview—Distinctive characteristics of mergersand acquisitions litigation

Beyond understanding the proposed transaction(s) at issue, itis vital for counsel to understand and be prepared for the variousdistinctive characteristics of this kind of litigation.

Extremely rapid pace. Motion practice, briefing, and discoverythat might take over a year in a more typical federal lawsuit willoften be compressed into a few weeks or, at most, a month ortwo.1 Important strategic and tactical decisions that counselotherwise would make only after careful and lengthy deliberationoften must be made on the spur of the moment. Depositions maybe taken only a day or two after documents are produced.Important witnesses such as a company’s CEO often must bemade available to testify after what would in other circumstancesseem like grossly inadequate time for preparation. Either thegrant or denial of injunctive relief may lead to expedited appealproceedings. Lawyers accustomed to thorough and thoughtfulpreparation must learn to do the best they can under the circum-stances and then move on to whatever the next task at hand may

2For example, in Beck v. Dobrowski, 559 F.3d 680, 684 (7th Cir. 2009),Judge Posner gives a succinct explanation of a number of reasons why an offervalued at $56 per share in a mix of cash and stock was not under the circum-stances superior to an all-cash offer of $55.50 per share.

[Section 83:3]1See § 83:44 for discussion of expedited discovery.


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be. These considerations also inform the judgment of firm and cli-ent to involve litigators early on in the transaction planningprocess.

A fluid and rapidly changing environment. M&A transactionsoften create an environment where significant, and often unex-pected, changes may occur without warning. A rival bid mayemerge, whether solicited by the target company or not. Ashareholders’ meeting may be called on short notice. The date ofa previously scheduled shareholders’ meeting may be delayed, ormay be accelerated. A bidder may raise its offer to the pointwhere an originally hostile bid will no longer be resisted (thusrendering pending litigation moot). A bidder may decide not toraise its offer under circumstances where an increase would benecessary for the potential transaction to remain viable, thus es-sentially withdrawing the offer. A hedge fund might acquire asubstantial position in a target’s stock and announce its opposi-tion to a proposed transaction. Any of these developments mayhave an immediate impact on whether the litigation strategy cur-rently being pursued remains sensible or even viable. Whateverthe litigation strategy adopted, it must remain at all times flex-ible to adjust to changing circumstances that may have a mate-rial impact on the litigation.

The supporting role of litigation. Even more so than in othertypes of commercial litigation, the litigation is not an end initself. The principal purpose of takeover litigation generally is ei-ther to remove obstacles to a transaction the client wishes topursue or to create obstacles for a transaction the client opposes.The client’s goals may change, and change quickly. The litigationis occurring in “real time,” and litigators must stay in constantcommunication with the client’s “deal” lawyers to make sure thelitigators remain fully apprised of the client’s business goals andwhether the litigation goals currently being pursued remainappropriate.

Other features. Some takeover bids and contests for corporatecontrol attract substantial media attention. Some clients may af-firmatively pursue a media/public relations strategy as a way ofsupporting their business goals with respect to the contest, inwhich case it is important to make sure that the company’s state-ments do not undermine its litigation position.2 Contests forcorporate control often attract arbitrageurs and other short-termspeculative investors to take positions in the target company’sstock. The litigation strategy often needs to be closely coordinatedwith a public relations strategy, and litigators should be awarethat what takes place in the courtroom not only may be affected

2See Chapter 64 “Crisis Management” (§§ 64:1 et seq.) for discussion ofmedia strategies in connection with pending litigation.


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by the news, but also may create the news. The concerns aboutclient confidentiality that are present in any legal representationmay be heightened, as the lawyers may be in possession ofpotentially market-moving information that would be of signifi-cant value to would-be insider traders if inadvertently orimproperly disclosed.

§ 83:4 Issues for representing target companies

As already noted, litigation will play a supporting role in thetarget’s resistance to an unwanted proposal, or its pursuit of analternative friendly transaction, or its defense against litigationbrought by a putative class of its shareholders challenging afriendly transaction.1

The target will generally rely primarily on its transactionallawyers and financial advisors in formulating its overall strategy,taking into account potential litigation considerations. Litigatorsshould work closely with the transactional lawyers as that strat-egy is implemented. In particular, they should help to vet draftsof merger (and other transaction) agreements, board presenta-tions, banker valuation materials, SEC filings and press releasesfor any language or provisions that might prove problematic inthe litigation context, and should also help to make sure that thedecision-making process of the board of directors is carried outand documented in a way that will adequately “make a record” asto the integrity and thoroughness of the process. Counsel shouldbe sensitive to the way the target’s response to an unwanted bidmay be portrayed in a negative light and be preparing how todefend that response not only in technical legal terms but interms of how to portray the response as fair and appropriate.Common rhetorical attacks counsel should be prepared to re-spond to may include: (a) that the target’s management isinterfering with the right of the shareholders to decide whetheror not to accept a bid; (b) that the target’s management is seek-ing delay for its own sake; and (c) that the target’s managementis trying to keep its own positions and related perks at theexpense of the shareholders’ interests (which is often describedas “entrenchment”). The target itself (with appropriate inputfrom counsel) also must be mindful of potential businessdownsides of an aggressive litigation strategy. Institutional or so-called activist investors, as well as advocates (perhaps self-styled)for best practices in corporate governance, may in some circum-stances be alienated by perfectly lawful defensive tactics, whichcould make successful resistance to a bid a pyrrhic victory if ma-

[Section 83:4]1See § 83:3.


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jor corporate stakeholders are unhappy with either the result orthe process by which it was obtained.

Thought should also be given as the litigation progresses to the“end game” if a hostile bid is successfully repelled. A hostile bid-der may have accumulated a significant stake of the target’sstock prior to launching its bid—5%, 10%, or even more. If thebid is unsuccessful, the bidder may be left with a substantial, butnon-controlling, investment in a company whose incumbentmanagement it presumably wanted to oust. If the bid is defeatedbecause a “white knight” or rival bidder makes a higher offer, thehostile bidder will be able to sell its stake at a profit, thuseliminating the issue. However, if the company remains indepen-dent, the erstwhile bidder’s continuing stake may lead to concernsfor the target as well as the bidder. In prior decades, an obviouspotential solution to this problem would be for the target to buyout the stake, perhaps at an above-market price. This practicebecame pejoratively known as “greenmail,” with a commonperception being that many hostile bids were launched withoutthe intent to secure control of the company but simply so that thebidder could create enough concern on the part of the target to bebought out on favorable terms. There are accordingly now anumber of potential obstacles under both state corporate law andfederal tax law to any premium buy-out of a bidder’s stake.Counsel should make sure that their client is not assuming theavailability of an “exit strategy” that would be foreclosed by theserestrictions.

§ 83:5 Issues for representing hostile bidders

Many of the specific issues that will arise when representing abidder are parallel to those already discussed for representing atarget.1 Again, it will be helpful to think of the sort of attacksthat will likely be made on the client’s position not as a technicallegal matter but as a matter of general fairness, in order to beprepared to respond to them. Typical claims made against a bid-der may be:

(a) it is making a coercive offer (designed to stampede inves-tors into making a hasty decision for fear of repercussions ifthey do not);

(b) the consideration being offered (be it cash, stock, or amix) financially undervalues the target company;

(c) it is taking advantage of temporary stock market fluctua-tions to try to acquire control at a deep discount (often referredto as an “opportunistically timed” proposal);

[Section 83:5]1See § 83:4.


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(d) it intends to sell off corporate assets, close or relocate fa-cilities, lay off long-term employees, and otherwise disrupt oreven devastate the lives of relevant constituencies other thanstockholders;

(e) even if no such disruptions are currently planned, theacquisition will load the company up with so much debt that itwill be likely to default, thus causing similar disruptions;

(f) a hostile bidder, who is a competitor of the target, is at-tempting to disrupt its business relationships;

(g) its offer reflects the use and/or disclosure of material,non-public information obtained from the target in connectionwith confidential due diligence; and

(h) its SEC disclosures relating to the offer are materiallymisleading or omit material information.

It will be helpful to understand whether it is thought that thetarget company can be induced to negotiate after pressure isbrought to bear (thus transforming a hostile bid into a negotiatedtransaction), or whether it is likely to be so intransigent that itwill be necessary to stay on the hostile path until the bid eithersucceeds or is abandoned.

It will also be helpful if the bidder has considered beforehandwhat its “exit strategy” should be if the bid is unsuccessful, keep-ing in mind the restrictions imposed by the anti-greenmail lawsreferred to above.2

§ 83:6 Issues for representing friendly merger partnersand “white knights”

Typically, parties who have agreed to, or are hoping to agreeto, a friendly transaction with the target will wish to keep a lowprofile and avoid litigation. They may nonetheless be named inlitigation or be the subject of third-party discovery, particularlyin connection with shareholder litigation brought by a putativeclass of the target’s shareholders following the announcement ofthe transaction. The best approach will generally be to coordinatewith the target company’s counsel, while remaining cognizant ofany area in which the third party’s interests may diverge fromthose of the target. One possible area of tension is in negotiatedtransactions with so-called “fiduciary outs” where the third partymay be concerned that the target (and/or its shareholders) willjilt it in favor of a more lucrative alternative offer.1 In that sce-nario the third party’s interests may become more activelyadverse to those of the target and it will want to consider the

2See § 83:4.

[Section 83:6]1See § 83:43.


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best strategy to enforce fully its contractual rights.

§ 83:7 Issues regarding other shareholders of a targetcompany

As noted throughout this chapter, shareholders of a targetcompany sometimes bring separate litigation (either on behalf ofa putative class of shareholders1 or derivatively)2 challengingdefensive measures that interfere with their ability to accept atender offer or similar proposal that is opposed by management.3

If the outside bidder is litigating similar claims, these actionstypically play a secondary role, since the bidder will have thefinancial and/or strategic incentives to devote the resources nec-essary to prosecuting the claims aggressively.

However, the significance of other shareholders, particularlylarge institutional investors, in contested M&A transactionsshould not be underestimated. While institutional investors areoften disinclined to actually become named plaintiffs in litigationof this sort, they may have a significant impact on how it iswaged. In particular, a target company’s management will runsevere risks if it alienates major shareholders by responding toan actual or potential bid in a fashion that is perceived as exces-sive or unwarranted by those shareholders, regardless of howdefensible the company’s response might be in court. If a criticalmass of large shareholders want management to negotiate ratherthan litigate, management will ignore those wishes at its peril.Moreover, some institutional shareholders have in recent yearsbeen taking a more active interest in issues of corporategovernance, and many perfectly lawful tactics available to atarget (such as, for example, the adoption of a “staggered” boardof directors that cannot be replaced in a single election) areviewed skeptically by advocates of corporate governance reform.Institutional shareholders may consult with each other as to thebest response to a particular M&A contest, or they may seek theviews of professional advisers (including firms like InstitutionalShareholder Services, which specialize in advising on proxy vot-ing and similar issues).

[Section 83:7]1See generally Chapter 19 “Class Actions” (§§ 19:1 et seq.).2See generally Chapter 20 “Derivative Actions by Stockholders” (§§ 20:1 et

seq.).3See §§ 83:41 to 83:43 for a description of some commonly litigated

defensive measures.


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Documents

Chapter 83 Mergers and Acquisitions - Fried Frank from Chapt… · Mergers and Acquisitions by William G. McGuinness and Scott B. Luftglass * I. INTRODUCTION § 83:1 Scope note II