May 31, 2013

Inside Business Law

Introduction to the Joint Task Force on M&A Litigation

The Joint Task Force on M&A Litigation is a collaborative project between the Business and Corporate Litigation Committee and the Mergers and Acquisitions Committee. Its co-chairs are the Honorable Myron T. Steele, Chief Justice of the Delaware Supreme Court, and Michael A. Pittenger of Potter Anderson & Corroon LLP.

The Joint Task Force was formed to facilitate a better understanding on the part of the Section's transactional lawyer members of various aspects of M&A litigation that affect their practice, to provide the Section's litigator members with a better perspective on deal dynamics, and to assist all in gaining a better understanding of judicial perspectives on Mergers and Acquisitions. The Joint Task Force will foster collaborative projects and programming opportunities on matters of interest to both M&A deal lawyers and litigators.

The Task Force held its first meeting at the Business Law Section's 2013 Spring Meeting. According to Co-Chair Michael A. Pittenger:

We had a strong and enthusiastic turn out for our kick off meeting in April, and are looking forward to providing many opportunities for deal lawyers, litigators, and judges to collaborate on M&A-related projects. Our first two projects involve grappling with the many problems posed by multi-jurisdictional stockholder class action litigation and providing guidance to M&A deal lawyers about document preservation obligations and spoliation rules. If you are interested in helping with either project or have ideas for other projections, we would love to hear from you.

Update on the Mergers and Acquisitions Committee

The mission of the Mergers and Acquisitions Committee is to discuss, debate, and educate its members on the legal issues relating to, and to collaborate with law schools, the judiciary, and investment banking and other professionals to establish best practices for M&A and related transactions, including with respect to the process of negotiating, documenting, and bringing these transactions to market. The Mergers and Acquisitions Committee is chaired by Mark A. Morton.

Contemporaneously with co-launching the Joint Task Force on M&A Litigation, the Mergers and Acquisitions Committee presented a program titled "What Deal Lawyers Need to Know About M&A Litigation" at the 2013 Spring Meeting, which addressed issues arising in merger litigation that transactional attorneys can head off or mitigate when negotiating and documenting the transaction.

The written materials are now available online.

Focus on the Director and Officer Liability Committee

The mission of the Director and Officer Liability Committee is to enhance the understanding of the risks to officers and directors in for-profit companies and to provide tools to assist counsel in managing such risks. To achieve that goal, Lewis Lazarus, the Chair of the Committee, explains that, "We aim to become the site of choice for inside counsel and practitioners seeking to stay current with the latest case law and statutory developments affecting director and officer liability."

In keeping with its mission, the Director and Officer Liability Committee prepared the inaugural edition of the Director and Officer Liability Report in March of this year. The report includes:

"Important Cases Regarding Director and Officer Liability: 2012," highlighting six key decisions issued by federal courts and Delaware courts addressing director and officer liability in 2012.

"Defending Directors and Officers Against Breach of Fiduciary Duty Claims in Bankruptcy," by Jeffrey Baddeley, addressing the fiduciary duties of directors and officers as a corporation nears insolvency, becomes insolvent, and files for bankruptcy.

The Committee expects to publish a similar report three times annually to supplement the updates of significant decisions or legislation the Committee sends to those on its listserv.

Finally, the Director and Officer Liability Committee has submitted for publication a model indemnification agreement which it expects to be available through the ABA Webstore in the fall of 2013.