Mergers & Acquisitions Litigation

We have handled cases dealing with almost every facet of merger transactions. Whether we are representing companies, officers, directors and special committees, we are thoroughly familiar with the options available to companies for resisting efforts to sidetrack a major transaction. More importantly, we have the experience and expertise necessary to assist in evaluating those options. And we have the relationships and the credibility necessary to achieve our clients' objectives–from a "take no prisoners" defense to a quick resolution that ensures the deal will close without disruption or delay.

Broad Experience

Our experience extends to every area of fast-paced, high-stakes M&A litigation. We have successfully represented clients with respect to contested acquisitions, tender offer litigation, litigation arising out of spin-outs, and acquisitions by majority shareholders. We have also handled cases challenging the validity of poison pills and other defensive measures.

We also have a proven track record on suits seeking to rescind, terminate, and enforce merger agreements, disputes arising out of "earn-out" provisions incorporated into merger agreements, disputes regarding the allocation of merger consideration between different classes of shareholders, securities fraud claims based on statements included in SEC filings made in connection with a merger, and suits to recover "greenmail" payments made in connection with takeover battles.

Our experience extends to all realms of business including software and other internet industries, financial services, oil and gas, healthcare, medical devices, and manufacturing.

Defending Your Deal

When plaintiff counsel seeks to unwind your deal in order to turn a profit for themselves, we can ensure that their gamesmanship does not upend the product of your careful negotiation.

In our decades of combined experience, we have defended deals against claims including

  • inadequate price, unfair process and inadequate disclosure
  • lack of independence by directors and financial advisors
  • defective financial analyses and fairness opinions
  • self-dealing and corporate waste resulting from golden parachutes
  • change-of-control payments, accelerated options, and other benefits paid to officers and directors
  • rejection of "superior" proposals
  • breaches of fiduciary duty by controlling shareholders
  • squeeze-outs
  • domination by chairmen and CEOs, and
  • excessive break-up fees, lock-ups, no-shop provisions, and other protective measures

PricewaterhouseCoopers LLP.  We obtained a verdict for PwC following a bench trial in the New York Supreme Court's Commercial Division on claims arising out of the acquisition and subsequent sale of a human resources consulting business as part of a US$280 million transaction.

Oracle Corporation.  Orrick represented Oracle in shareholder litigation arising from its US$7.4 billion merger agreement with Sun.  After expedited discovery, plaintiffs moved to enjoin the merger but Orrick successfully opposed the motion. 

We also represented Oracle in shareholder litigation arising from its $1.4 billion acquisition of RightNow Technologies. 

Par Pharmaceutical Companies, Inc.  We successfully represented Par Pharmaceuticals in connection with multiple stockholder suits brought by Par stockholders in Delaware and New Jersey courts seeking to enjoin the sale of the company to TPG Capital.  We opposed the plaintiffs’ efforts and resolved the case on extremely favorable terms.  The deal closed as scheduled.

Synopsys, Inc.  Orrick represented Synopsys in shareholder litigation filed in Delaware and California courts seeking to enjoin its acquisition of Magma Design Automation.  We resolved the case at de minimus cost to our client, and the deal closed as scheduled. 

NVIDIA Corporation. Orrick represented NVIDIA at trial in bankruptcy court in the Northern District of California in a complex shareholder dispute regarding NVIDIA's US$70 million acquisition of 3dfx Interactive, Inc., a former maker of 3-D graphics processors for personal computers and video games systems, and 3dfx’s subsequent bankruptcy.  Chapter 11 trustee William A. Brandt, Jr. alleged NVIDIA owed 3dfx creditors one million shares of stock for the merger.  The court found in favor of NVIDIA on all issues and rejected attempts to obtain damages from the company in excess of US$100 million.

Eiffaime.  We represented Eiffaime, a French company regrouping the shareholdings of the directors of the Eiffage Group, in connection with Eiffage’s defense against Sacyr’s hostile takeover attempt.

McAfee. Orrick represented Secure Computing in a stockholder challenge to McAfee's $500M takeover of Secure.  Plaintiffs obtained expedited discovery and sought to enjoin the merger, but we opposed the motion and were able to prompt plaintiffs to voluntarily dismiss the case with prejudice before the hearing with no payment by the parties to the merger.

SureWest Communications.  Orrick represented SureWest Communications and its board of directors in shareholder litigation seeking to enjoin the proposed sale of SureWest to Consolidated Communications Holdings.  We resolved the case at de minimus cost to our client, and the deal closed as scheduled.

Pre-Paid Legal Services.  We represented Pre-Paid Legal and its board of directors in multiple shareholder lawsuits seeking to enjoin the merger between Pre-Paid Legal and MidOcean PPL Holdings.  We resolved the case at de minimus cost to our client, and the deal closed as scheduled.     

VantagePoint Venture Partners.  Orrick represented VantagePoint Venture Partners in multiple high-profile lawsuits filed in California court arising from the sale of MySpace Inc.'s parent company, Intermix Media, Inc., to News Corporation. The plaintiffs sought to enjoin the transaction.  We defeated the injunction, and the deal closed.

Deloitte & Touche.  We represented financial advisor Deloitte & Touche in obtaining a dismissal with prejudice of mass actions arising out of acquisition of managed care medical corporations. 

Acer Inc.  We successfully represented Acer Inc., the third-largest PC maker in the world, and its subsidiary, Gateway, Inc., the third-largest PC maker in the United States, in connection with litigation brought to prevent the owner of Packard Bell BV, a European PC maker, from terminating an agreement to sell that business to Acer in order to enter into a deal with a competing bidder.  We secured a restraining order in New York state court on an expedited basis.  The transaction subsequently closed under the terms of the original agreement. We also represented Acer Inc. in connection with six stockholder suits brought by Gateway, Inc. stockholders in Delaware and California courts challenging the validity of the merger agreement between Acer and Gateway and seeking an injunction and other relief.  We opposed the plaintiffs’ efforts and resolved the case on extremely favorable terms.

Retek, Inc.  We represented Retek and its board of directors in a complaint filed by Retek stockholders attempting to enjoin a merger between Retek and Oracle Corporation.  The plaintiffs alleged a variety of fiduciary duty claims in the complaint.  The Orrick team defeated the attempt to enjoin the deal and also obtained a dismissal of the complaint with prejudice.  The Retek merger with Oracle was accomplished successfully, and the plaintiffs received nothing.

Telenor.  We represented Telenor East Invest AS, a subsidiary of Norway’s largest telecommunications provider, in litigation arising out of an attempted hostile takeover by Alfa Group, a Russian financial industrial group, for Telenor's interests in multibillion-dollar European companies.  That defense involved two arbitrations relating to shareholder agreement violations, both of which we won; four separate proceedings in federal court in New York; numerous litigation matters in Russia and Ukraine; and three proxy contests in Russia.  Recently, a New York federal court ruled in Telenor's favor with respect to U.S. securities claims by Telenor against Alfa and its affiliates.

eCORP.  We represented eCORP in a battle for control of a privately held investment vehicle operating a natural gas storage facility in New York and owned by eCORP; AIG Highstar Capital, an investment vehicle of AIG; and other investors.  On very short notice, we successfully obtained an injunction preventing AIG from taking control of the board of directors of the target and ultimately derailed this hostile takeover attempt.

Laserscope.  We represented Laserscope in connection with stockholder litigation to halt its acquisition by American Medical Systems.  Ultimately, the plaintiffs acknowledged the weakness of their case and agreed to a settlement on very favorable terms, which allowed the transaction to close on the schedule set by the parties.

Atria Communities.  We represented Atria at trial in defense of an action by ARV, a competitor, to enjoin the acquisition of ARV by Lazard Freres.  We obtained judgment for Atria at the close of the plaintiff's case.

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