Click here to download the M and A litigation 2019 report, published by Getting the Deal Through.

Jurisdictions covered

The following 15 jurisdictions are covered in this report:

Australia; Austria; China; France; Germany; Hong Kong; India; Italy; Japan; Netherlands; Spain; Switzerland; Turkey; United Kingdom; United States

Questions

The set of questions relating to the topic of M&A litigation and answered by the guide for each jurisdiction covered include:

• • Identify the main claims shareholders in your jurisdiction may assert against corporations, officers and directors in connection with M&A transactions.
• • For each of the most common claims, what must shareholders in your jurisdiction show to bring a successful suit?
• • 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?
• • Do the types of claims that shareholders can bring differ depending on the form of the transaction?
• • Do the types of claims differ depending on whether the transaction involves a negotiated transaction versus a hostile or unsolicited offer?
• • Do the types of claims differ depending on whether the loss is suffered by the corporation or by the shareholder?
• • 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?
• • 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?
• • 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?
• • May defendants seek early dismissal of a shareholder complaint prior to disclosure or discovery?
• • Can shareholders bring claims against third-party advisers that assist in M&A transactions?
• • Can shareholders in one of the parties bring claims against the counterparties to M&A transactions?
• • 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?
• • 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?
• • Are there common law rules that impair shareholders’ ability to bring claims against board members or executives in connection with M&A transactions?
• • 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?
• • Does the standard vary depending on the type of transaction at issue?
• • Does the standard vary depending on the type of consideration being paid to the seller’s shareholders?
• • Does the standard vary if one or more directors or officers have potential conflicts of interest in connection with an M&A transaction?
• • 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 ratably with all shareholders?
• • 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?
• • Can shareholders challenge particular clauses or terms in M&A transaction documents?
• • What impact does a shareholder vote have on M&A litigation in your jurisdiction?
• • What role does directors’ and officers’ insurance play in shareholder litigation arising from M&A transactions?
• • Who has the burden of proof in an M&A litigation — the shareholders or the board members and officers? Does the burden ever shift?
• • Are there pre-litigation tools that enable shareholders to investigate potential claims against board members or executives?
• • Are there jurisdictional or other rules limiting where shareholders can bring M&A litigation?
• • Does your jurisdiction permit expedited proceedings and discovery in M&A litigation? What are the most common discovery issues that arise?
• • How are damages calculated in M&A litigation in your jurisdiction?
• • What are the special issues in your jurisdiction with respect to settling shareholder M&A litigation?
• • Can third parties bring litigation to break up or stop agreed M&A transactions prior to closing?
• • Can third parties in your jurisdiction use litigation to force or pressure corporations to enter into M&A transactions?
• • 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?
• • Shareholders aside, what are the most common types of claims asserted by and against counterparties to an M&A transaction?
• • How does litigation between the parties to an M&A transaction differ from litigation brought by shareholders?