Paul J. Shim

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In a decision with important consequences for merger and acquisition transactions and the litigation resulting from those transactions, a divided New York Court of Appeals held last week that the common interest doctrine applies only to post-signing, pre-closing communications between parties to a merger agreement if they relate to pending or anticipated litigation.  Other communications between separately represented parties to a merger (or other commercial transaction) are not entitled to privilege under New York law.
Continue Reading New York’s Highest Court Holds Common Interest Doctrine Inapplicable to Commercial Transactions Absent Litigation

In a well-reasoned memorandum opinion, the Delaware Chancery Court in Alliant Techsystems, Inc. v. MidOcean Bushnell Holdings, L.P.[1] provided to M&A practitioners a stark reminder to take extra care in crafting purchase price adjustment provisions, particularly in respect of their interplay with contractual indemnification clauses.
Continue Reading Revisiting a Trap for the Unwary in Purchase Price Adjustments

Change-in-control transactions can present complicated questions concerning the attorney-client privilege, should litigation arise.  Does any privilege protect post-signing, pre-closing communications between the acquirer’s and the target’s respective counsel, or are those communications subject to discovery?  And what happens post-closing to pre-closing privileged communications – does the acquiring company also acquire the pre-merger privileged communications of the target?  Recent decisions by courts in New York and Delaware help shed light on these questions and provide useful guidance on how to ensure that all available privileges are preserved.
Continue Reading Attorney-Client Privilege in M&A Transactions