M&A Deal Counsel's Role in Creating a Winning Written Record for Defending Breach of Fiduciary Duty Litigation

Michael A. Pittenger, Janine M. Salomone, Pamela L. Millard, Ryan T. Costa, Jacqueline A. Rogers

While M&A transactions give rise to many different types of litigation, including disputes between the merger parties and statutory appraisal actions, the most common type of litigation stemming from public company mergers is a stockholder class action alleging breaches of fiduciary duty by corporate directors in connection with the sales process and approval of the transaction.  With the prevalence of such litigation at an all time high and showing no signs of abating, M&A practitioners must have an appreciation of how the written record of a board’s or committee’s deliberative process will be treated and viewed by a court in litigation.  Such an understanding will better enable M&A deal lawyers to aid their clients in creating a comprehensive and consistent written record that best positions their clients to prevail in the almost-inevitable breach of fiduciary duty litigation.

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