Overview

In today’s global business environment, in which regulation is increasingly complex and shareholder activism is on the rise, companies and buyout firms need an experienced advocate to protect their vital business interests. In the past decade, Ropes & Gray has represented companies in M&A transactions with an aggregate value of more than $400 billion, many of which involved cross-border and multijurisdictional issues A leader in both global M&A and litigation, Ropes & Gray provides clients with unrivaled counsel on strategic transactions, as well as the possible litigation challenges that can follow major deals.

Comprehensive Capabilities

Representing buyers, sellers, companies, officers, directors and special committees, our M&A corporate lawyers and litigators work hand-in-hand on transactions, ensuring that each and every deal is crafted and reviewed from both a business and litigation standpoint. As a result, our clients frequently avoid litigation—or have the best possible record for defending an action if one is brought. Our attorneys have successfully litigated virtually every type of dispute relating to M&A transactions, including:

Class action fiduciary duty litigation
Controlling stockholder M&A litigation
Dual-class transactions and litigation
Contests for corporate control regarding fiduciary duties and responsibilities
Friendly and hostile takeovers
Litigation arising out of large, complex going-private transactions
Appraisal claims and litigation arising out of public M&A transactions
Post-closing deal disputes, including working capital and purchase price adjustment disputes
Negotiation and crafting of representations and warranties insurance policies

In addition, our attorneys have defended numerous securities fraud claims in federal and state courts nationwide, as well as all aspects of class and derivative actions and corporate governance disputes before the Delaware Court of Chancery, which often arise in the context of acquisitions.

Experience

Strategic M&A Transactions

Advent International Corp. Represented Advent in one of the first cases in the COVID-19 era to test how “material adverse effect” clauses in merger agreements apply in the context of the pandemic. Following execution of a merger agreement by which Advent would acquire Forescout for nearly $2 billion, Forescout’s financial performance declined dramatically and the company appeared to deviate from its ordinary course of business. Advent notified Forescout that it would not close the merger, and Forescout then sued in the Delaware Court of Chancery, seeking an order forcing Advent to consummate the transaction. Following highly expedited fact and expert discovery—including over 40 depositions in three weeks—the case settled the week before trial, with Forescout agreeing to a lower transaction price.
National Amusements. Trial counsel to Shari Redstone and National Amusements, Inc. defending against parallel actions in the Delaware Court of Chancery brought by former stockholders of Viacom and former stockholders of CBS challenging the multi-billion dollar merger of Viacom and CBS in 2019. Plaintiffs claimed that the merger was unfair to the stockholders of each respective company, and that defendants allegedly breached their fiduciary duties to both companies in connection with the merger.
William I. Koch. Secured a victory in the Delaware Supreme Court on behalf of industrialist William I. Koch and certain of his affiliated investment vehicles, who together composed the majority stakeholders of Oxbow Carbon LLC, seeking to prevent a forced sale of Oxbow Carbon by its minority members. The case was initially tried in the Delaware Court of Chancery, which found that Mr. Koch had advanced the only logical interpretation of the LLC Agreement—which operated to prevent a forced sale under current market conditions—but that an implied covenant existed to reverse that result. In an en banc decision, the Delaware Supreme Court found that the plain language of the LLC Agreement controlled and reversed the Chancery Court’s implied covenant holding, vindicating Mr. Koch’s position as argued by Ropes & Gray in the Delaware Supreme Court.
Tesaro, Inc. Secured complete dismissal of a class action complaint filed in the Delaware Court of Chancery challenging the $5.1 billion acquisition of Tesaro, Inc. by GlaxoSmithKline, plc. The Court rejected each of the plaintiff’s alleged disclosure claims and held that the plaintiff had failed to plead that the stockholders’ decision to tender their shares was not fully informed. As a result, the Court concluded that under Corwin the business judgment rule applied and compelled dismissal. Successfully defended the Court of Chancery’s dismissal before the Delaware Supreme Court, obtaining a unanimous affirmance from the Supreme Court en banc.

Post-Closing Transaction-Related Disputes

Shire / Novartis. Obtained dismissal of two breach of contract actions, on behalf of Shire and Novartis, filed by former stockholders of SARcode Bioscience Inc. in the Delaware Court of Chancery in which those stockholders sought $425 million in damages for alleged failure to make certain milestone payments pursuant to a merger agreement. We secured a first dismissal when the Court of Chancery held that our client did not owe the milestone payments under the clear language of the merger agreement, and a second dismissal when the Court later held that res judicata barred the stockholders from obtaining extensive data under the information rights provision of the merger agreement to further pursue their claim to the milestone payments.
Medivation, a Pfizer subsidiary. Represented in connection with two appraisal actions in the Delaware Court of Chancery brought by purported stockholders following a $14 billion acquisition. We settled the case on very favorable terms.
Large Private Equity Firm. Represented in a dispute over whether a working capital calculation must be determined in accordance with the accounting principles defined in the stock purchase agreement when those principles were altered to conform to GAAP prior to the execution of the agreement.

Going-Private Transactions

Former Directors of Akcea Therapeutics, Inc. Represented in connection with a stockholder class action lawsuit take-private acquisition of Akcea by its former majority stockholder Ionis Pharmaceuticals, Inc. The action alleged, among other things, that Akcea’s former directors withheld material information they learned during a prior sales process concerning the Company’s value from the special committee that was formed to evaluate the transaction. After briefing and oral argument on the motion to dismiss, the parties reached a settlement in principle on terms favorable to our client.
Silver Lake Partners. Represented in shareholder litigation challenging a deal involving hundreds of millions of dollars relating to the private buy-out of SolarWinds. The plaintiff claimed that Silver Lake aided and abetted the alleged breach of fiduciary duties by SolarWinds’ directors, and controlled a supposedly misleading proxy in connection with the sale. We successfully avoided a pre-closing injunction at the outset of the litigation, allowing the merger—one of the largest private equity buyouts of the year—to close. The action was subsequently dismissed.
Houlihan Lokey Capital, Inc. Obtained complete dismissal with prejudice of a class action lawsuit in the Delaware Court of Chancery. The suit challenged the acquisition of Synutra International, Inc. by its controlling stockholder, arguing that the special committee of the Synutra Board of Directors that was formed to negotiate that transaction breached its fiduciary duties and that global investment bank Houlihan Lokey, which served as the special committee’s financial advisor, aided and abetted those breaches.
TPG Capital. Represented in connection with intensely followed shareholder litigation that challenged TPG’s $3 billion acquisition of J.Crew Group.