CD: Could you provide an overview of the M&A disputes landscape in recent times? What key trends and developments have you observed?
Puri: We continue to see disputes on issues such as completion accounts and price adjustments, which are often resolved at an early stage or through negotiation and discussion between the parties. We have also seen disputes arising from anti-corruption related issues. We have also seen M&A disputes involving allegations of serious wrongdoing, such as the ongoing litigation between HP and the former management of Autonomy plc which has now reached trial in the commercial court and where there have also been parallel regulatory and enforcement investigations and criminal proceedings.
Trevan: In the European M&A market, the majority of disputes we are seeing arise out of the reps and warranties given by sellers in relation to tax, financial statements and compliance with laws. The first two factors are perhaps unsurprising. The third has become increasingly prominent in recent years as regulation and regulatory enforcement has come to the fore, especially where parties are buying or selling in heavily regulated sectors. In the Asian M&A market, by contrast, we are seeing an increasing number of disputes relating to allegations of fraud discovered post-closing and the misappropriation of assets by shareholders or senior management. We are also seeing battles for control among strategic shareholders, with professional shareholders often caught in the middle.
Reed: We have seen a moderate uptick in shareholder litigation in Texas in recent years. Plaintiffs also tend to file suit in the courts that they believe will be most hospitable, both to their substantive arguments and to quick settlements. While Texas courts have been out of favour in recent years, recent decisions by the Delaware courts that expressed scepticism about strike suits, and more importantly, attorneys’ fee awards, appear to be motivating plaintiffs to file cases outside of Delaware and in federal courts again.
Oct-Dec 2019 issue
Cleary Gottlieb Steen & Hamilton LLP
Forensic Risk Alliance
Freshfields Bruckhaus Deringer LLP
Herbert Smith Freehills LLP
Skadden, Arps, Slate, Meagher & Flom LLP