Governance & Contract Disputes
Governance issues typically relate to the adequacy of the deal process and the extent to which deal protection terms or other provisions may have prevented the target from realizing a higher price.
In these disputes, we have examined:
- Transaction agreements: We have reviewed issues of enforceability and violation related to nondisclosure, standstill, and material adverse effects agreements. In Ventas, Inc. v. HCP, Inc., we examined the extent to which a topping bid that was in violation of a standstill resulted in Ventas having to increase its offer for Sunrise REIT.
- Adequacy of deal process: In analyzing deal process, we support expert examination of the extent to which the sales process and actions by participants were consistent with customary practice. In Ventas, for example, we analyzed the extent to which HCP’s actions were in line with customs and practice. Adequacy of deal processes may also involve analyzing the extent to which there are aspects of the deal process that may have disincentivized potential bidders from trying to acquire the target.
- Q&A A Focus on Proxy Puts: Change-of-Control Provisions in Perspective
Ventas, Inc. v. HCP, Inc.
Shut Up and Stand Still: Understanding the Role of Standstill Provisions in M&A DisputesExecutive Counsel, June/July 2012
Rohm and Haas Co. v. The Dow Chemical Co.
Corvex Management et al. v. CommonWealth REIT et al.
- Featured Expert Thomas Lys Eric L. Kohler Emeritus Chair in Accounting and Professor of Accounting Information & Management, Kellogg School of Management, Northwestern University; Professor of Law (by courtesy), Northwestern University Law School