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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.
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2.
For each of the most common claims, what must shareholders in your jurisdiction show to bring a successful suit?
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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?
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4.
Do the types of claims that shareholders can bring differ depending on the form of the transaction?
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5.
Do the types of claims differ depending on whether the transaction involves a negotiated transaction versus a hostile or unsolicited offer?
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6.
Do the types of claims differ depending on whether the loss is suffered by the corporation or by the shareholder?
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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?
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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?
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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?
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10.
May defendants seek early dismissal of a shareholder complaint prior to disclosure or discovery?
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11.
Can shareholders bring claims against third-party advisers that assist in M&A transactions?
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12.
Can shareholders in one of the parties bring claims against the counterparties to M&A transactions?
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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?
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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?
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15.
Are there common law rules that impair shareholders’ ability to bring claims against board members or executives in connection with M&A transactions?
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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?
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17.
Does the standard vary depending on the type of transaction at issue?
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18.
Does the standard vary depending on the type of consideration being paid to the seller’s shareholders?
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19.
Does the standard vary if one or more directors or officers have potential conflicts of interest in connection with an M&A transaction?
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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?
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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?
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22.
Can shareholders challenge particular clauses or terms in M&A transaction documents?
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23.
What impact does a shareholder vote have on M&A litigation in your jurisdiction?
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24.
What role does directors’ and officers’ insurance play in shareholder litigation arising from M&A transactions?
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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?
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26.
Are there pre-litigation tools that enable shareholders to investigate potential claims against board members or executives?
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27.
Are there jurisdictional or other rules limiting where shareholders can bring M&A litigation?
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28.
Does your jurisdiction permit expedited proceedings and discovery in M&A litigation? What are the most common discovery issues that arise?
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29.
How are damages calculated in M&A litigation in your jurisdiction?
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30.
What are the special issues in your jurisdiction with respect to settling shareholder M&A litigation?
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31.
Can third parties bring litigation to break up or stop agreed M&A transactions prior to closing?
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32.
Can third parties in your jurisdiction use litigation to force or pressure corporations to enter into M&A transactions?
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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?
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34.
Shareholders aside, what are the most common types of claims asserted by and against counterparties to an M&A transaction?
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35.
How does litigation between the parties to an M&A transaction differ from litigation brought by shareholders?
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Updates and trends
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