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  • 1.

    Identify the main claims shareholders in your jurisdiction may assert against corporations, officers and directors in connection with M&A transactions.

  • 2.

    For each of the most common claims, what must shareholders in your jurisdiction show to bring a successful suit?

  • 3.

    Do the types of claims that shareholders can bring differ depending on whether the corporations involved in the M&A transaction are publicly traded or privately held?

  • 4.

    Do the types of claims that shareholders can bring differ depending on the form of the transaction?

  • 5.

    Do the types of claims differ depending on whether the transaction involves a negotiated transaction versus a hostile or unsolicited offer?

  • 6.

    Do the types of claims differ depending on whether the loss is suffered by the corporation or by the shareholder?

  • 7.

    Where a loss is suffered directly by individual shareholders in connection with M&A transactions, may they pursue claims on behalf of other similarly situated shareholders?

  • 8.

    Where a loss is suffered by the corporation in connection with an M&A transaction, can shareholders bring derivative litigation on behalf or in the name of the corporation?

  • 9.

    What are the bases for a court to award injunctive or other interim relief to prevent the closing of an M&A transaction? May courts in your jurisdiction enjoin M&A transactions or modify deal terms?

  • 10.

    May defendants seek early dismissal of a shareholder complaint prior to disclosure or discovery?

  • 11.

    Can shareholders bring claims against third-party advisers that assist in M&A transactions?

  • 12.

    Can shareholders in one of the parties bring claims against the counterparties to M&A transactions?

  • 13.

    What impact do the corporation’s constituting documents have on the extent board members or executives can be held liable in connection with M&A transactions?

  • 14.

    Are there any statutory or regulatory provisions in your jurisdiction that limit shareholders’ ability to bring claims against directors and officers in connection with M&A transactions?

  • 15.

    Are there common law rules that impair shareholders’ ability to bring claims against board members or executives in connection with M&A transactions?

  • 16.

    What is the standard for determining whether a board member or executive may be held liable to shareholders in connection with an M&A transaction?

  • 17.

    Does the standard vary depending on the type of transaction at issue?

  • 18.

    Does the standard vary depending on the type of consideration being paid to the seller’s shareholders?

  • 19.

    Does the standard vary if one or more directors or officers have potential conflicts of interest in connection with an M&A transaction?

  • 20.

    Does the standard vary if a controlling shareholder is a party to the transaction or is receiving consideration in connection with the transaction that is not shared rateably with all shareholders?

  • 21.

    Does your jurisdiction impose legal restrictions on a company’s ability to indemnify, or advance the legal fees of, its officers and directors named as defendants?

  • 22.

    Can shareholders challenge particular clauses or terms in M&A transaction documents?

  • 23.

    What impact does a shareholder vote have on M&A litigation in your jurisdiction?

  • 24.

    What role does directors’ and officers’ insurance play in shareholder litigation arising from M&A transactions?

  • 25.

    Who has the burden of proof in an M&A litigation - the shareholders or the board members and officers? Does the burden ever shift?

  • 26.

    Are there pre-litigation tools that enable shareholders to investigate potential claims against board members or executives?

  • 27.

    Are there jurisdictional or other rules limiting where shareholders can bring M&A litigation?

  • 28.

    Does your jurisdiction permit expedited proceedings and discovery in M&A litigation? What are the most common discovery issues that arise?

  • 29.

    How are damages calculated in M&A litigation in your jurisdiction?

  • 30.

    What are the special issues in your jurisdiction with respect to settling shareholder M&A litigation?

  • 31.

    Can third parties bring litigation to break up or stop agreed M&A transactions prior to closing?

  • 32.

    Can third parties in your jurisdiction use litigation to force or pressure corporations to enter into M&A transactions?

  • 33.

    What are the duties and responsibilities of directors in your jurisdiction when the corporation receives an unsolicited or unwanted proposal to enter into an M&A transaction?

  • 34.

    Shareholders aside, what are the most common types of claims asserted by and against counterparties to an M&A transaction?

  • 35.

    How does litigation between the parties to an M&A transaction differ from litigation brought by shareholders?

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Hogan Lovells is a leading global law firm, with more than 2,500 lawyers and 48 offices in six continents. Since opening in Brazil in 2013, Hogan Lovells has been very active across a number of practice areas, including in M&A, financing transactions, international arbitrations, compliance and investigations.

View more information about Hogan Lovells


Rome
Via Marche, 1-3
00187
Rome
Italy
T: +39 06 6758231
F: +39 06 67582323
Milan
Via Santa Maria alla Porta, 2
20123
Milan
Italy
T: +39 02 7202521
F: +39 02 72025252


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