Representative Engagements

“MATERIAL ADVERSE EFFECT” LITIGATIONS

• Fresenius SE & Co., a German healthcare company, in a landmark ruling, affirmed by the Delaware Supreme Court, that Fresenius was justified in terminating a $4.8 billion merger agreement with Akorn Pharmaceuticals due to Akorn’s post-signing decline and Akorn’s blatant breaches of FDA data integrity requirements, both constituting Material Adverse Events (MAE) under Delaware law. The decision was the first to find an MAE justified based on post-signing financial decline and other factors.
• Channel Medsystems, Inc., a medical device start-up, in a major trial victory in the Delaware Court of Chancery in a material adverse event litigation with Boston Scientific Corporation in which Boston Scientific unsuccessfully sought to terminate its $275 million acquisition of the company.
• Simon Property Group in expedited litigation concerning Simon’s suit to terminate its proposed $3.6 billion acquisition of a majority of Taubman Realty Group due to an alleged COVID-19-related material adverse change. The parties settled on the eve of trial, resulting in an $800 million purchase price reduction—the biggest COVID-19 related discount to date for a major deal.
• LVMH in expedited litigation in the Delaware Court of Chancery concerning LVMH’s proposed $16.2 billion acquisition of luxury jeweler Tiffany & Co., asserting that a material adverse effect had occurred since the emergence of the COVID-19 pandemic. The parties settled prior to trial, with LVMH agreeing to purchase Tiffany at price below the initial per-share offer.
• Comtech Telecommunications in securing the favorable settlement of expedited material adverse event litigation in the Delaware Court of Chancery which allowed for the termination of a major merger agreement.
• 1-800-Flowers.com, Inc. in a merger dispute with Bed Bath & Beyond in the Delaware Court of Chancery in which Bed Bath & Beyond brought a breach of contract action regarding Flowers’ attempt to terminate its agreement to purchase PersonalizationMall.com, citing a material adverse effect as a result of the COVID-19 pandemic. Following an expedited litigation, the parties entered into a settlement agreement and the acquisition was completed at a price below the initial offer.
• Alere, Inc., a medical device and point-of-care testing company, in its closely-watched material adverse change litigation with Abbott Laboratories in which, after an expedited proceeding, Paul, Weiss achieved a settlement whereby Abbott agreed to close the $5.3 billion acquisition.

BREACH OF FIDUCIARY DUTY LITIGATIONS

• The independent directors of former CBS Corp. in successfully resolving In re CBS Corp. Stockholder Class Action and Derivative Litigation, a multibillion-dollar securities class and derivative action brought in the Delaware Court of Chancery alleging breach of fiduciary duty claims, among others, arising from the stock-for-stock merger of CBS and Viacom. The settlement was reached just weeks ahead of trial and was approved by the court. Paul, Weiss concurrently represented the CBS special committee in successfully resolving In re Viacom Inc. Stockholder Litigation, a parallel class action filed in the Court of Chancery over the same alleged conduct.
• The Special Committee and additional independent directors of travel platform Expedia Group, Inc. in a multi-year litigation and internal investigation of claims of a shareholder derivative breach of fiduciary duty class action brought in the Delaware Court of Chancery related to Expedia’s $2.6 billion acquisition of Liberty Expedia Holdings. The investigation determined that the claims were without merit and the litigation concluded with a negotiated settlement.
• Affiliates of Bain Capital in the settlement of a stockholder action brought in the Delaware Court of Chancery asserting that Bain aided and abetted a breach of fiduciary duty by the former controlling stockholder of Surgery Partners in connection with a series of transactions through which Bain acquired a controlling stake in Surgery Partners from the company’s former controlling stockholder and purchased preferred stock from the company to help fund its acquisition of a third party, National Surgical Healthcare.
• Virtu Financial, a leading high-frequency trading firm, in the successful resolution of a preliminary injunction brought under Section 202 of the Delaware Corporation Law challenging Virtu’s $1.4 billion acquisition of Knight Capital Group. Paul, Weiss subsequently negotiated the favorable settlement of a stockholder class action in the Delaware Court of Chancery alleging breach of fiduciary duty and disclosure-related claims concerning the same transaction.
• Certain of the former directors of Churchill Capital Corp. III, a special purpose acquisition company (SPAC), in the successful settlement of a stockholder class action regarding Churchill’s $11 billion merger with health care data analytics firm MultiPlan Corp. The stockholders asserted that the merger was a conflicted controller transaction and alleged that the defendants issued misleading disclosures and withheld material information in order to consummate the transaction for their own personal benefit and to the detriment of the public stockholders.
• The Special Committee of the Board of Directors of Pilgrim’s Pride Corporation in the successful defense of shareholder derivative litigation brought in Delaware Court of Chancery alleging breach of fiduciary duty claims arising out of Pilgrim’s Pride’s $1.3 billion acquisition of Moy Park from JBS SA.
• Dominion Diamond in securing the dismissal of a putative shareholder class action alleging breach of fiduciary duty, negligent misrepresentation and quasi-appraisal claims arising out of Dominion’s $1.2 billion acquisition by The Washington Companies.
• The Special Committee of the Board of Directors of QAD Inc., a leading provider of cloud-based enterprise software solutions, in defeating a stockholder’s preliminary injunction motion brought in the Delaware Court of Chancery seeking to block a shareholder vote on QAD’s $2 billion merger with private equity firm Thoma Bravo. The ruling, which followed a highly contested hearing and expedited discovery, allowed for the transaction to proceed to a shareholder vote and the sale was completed shortly thereafter. The parties entered into a global settlement to resolve the litigation in May 2023.
• Atos SE, a French IT services provider, in the successful resolution of a suit brought in the Delaware Court of Chancery against Bharat Desai, the co-founder and chairman of Syntel, asserting claims related to a fraudulent representation in the merger agreement for Atos’ $3.57 billion acquisition of Syntel. The parties reached a settlement after the court denied the defendant’s motion to dismiss.
• Lawrence Ellison and other defendants as lead counsel in the successful resolution of a shareholder derivative suit brought in the Delaware Court of Chancery asserting breach of fiduciary duty claims in connection with nominal defendant Autonomous Medical Devices, Inc.’s equity financings. The plaintiffs purported to assert breach of fiduciary duty claims on behalf of AMDI against AMDI’s majority stockholder and certain AMDI directors.
• Evercore Group in a class action brought by former stockholders of Foundation Building Materials, Inc. (FBM), the largest specialty distributor of building materials in North America, asserting claims against Evercore for aiding and abetting a breach of fiduciary duty through its role as the independent financial advisor to a special committee of the FBM board in connection with FBM’s $1.45 billion acquisition by an affiliate of American Securities.
• Fireman Capital Partners in a class action brought by former shareholders of Left Coast Ventures (LCV), a cannabis and hemp company, alleging, among other things, that Fireman Capital breached its fiduciary duty to LCV by causing the company to amend certain convertible notes and warrants prior to LCV’s merger with a SPAC, thereby diverting some portion of the merger consideration from LCV shareholders to Fireman Capital.
• Geneve Holdings Inc., an insurance company, and several board members of its publicly-traded subsidiary Independence Holding Corp. in litigation brought in the Delaware Court of Chancery alleging that Geneve, as the controlling shareholder, breached its fiduciary duties in connection with Geneve’s take-private acquisition of IHC.
• The Newmark Group, Inc. and the company’s compensation committee in connection with a stockholder derivative action brought in the Delaware Court of Chancery asserting breach of fiduciary duty claims against Howard Lutnick, the company’s controlling stockholder, Chairman and principal executive officer, and the compensation committee regarding the committee’s award of a $50 million cash bonus to Lutnick. The complaint was consolidated with a related action and is pending.
• Advance, a privately-owned investment company, and several current and former officers and directors in a shareholder class action brought in the Delaware Court of Chancery asserting breach of fiduciary duty claims related to the $43 billion merger between AT&T’s WarnerMedia and Discovery Inc., which Advance founded and is a majority shareholder of.
• Pilot Travel Centers (PTC), an owner and operator of travel centers across the United States intended to serve the trucking industry, in the favorable resolution on the eve of trial of a breach of contract and fiduciary duty action filed in the Delaware Court of Chancery by Pilot Corporation, a minority member of PTC, against PTC, Berkshire Hathaway, the majority members of PTC, and certain PTC board members. Plaintiff alleged that PTC breached the LLC agreement, and that Berkshire and the board defendants breached their fiduciary duties by imposing pushdown accounting on PTC’s financial statements, which artificially reduced PTC’s earnings and devalued Pilot Corporation’s put right to sell its remaining 20% interest in PTC to Berkshire.
• The former members of the Special Committee of the Board of Directors of Pattern Energy Group Inc., a California-based independent power company, in the successful resolution of two separate shareholder class actions brought in the Delaware Court of Chancery and in the U.S. District Court for the District of Delaware, asserting breach of fiduciary duty claims related to Pattern Energy’s $6.1 billion merger agreement with Canada Pension Plan Investment Board (CPPIB).

DISCLOSURE-RELATED LITIGATIONS

• Nuance Communications, an American multinational computer software technology corporation, in securing the dismissal of a merger disclosure lawsuit and related motion for attorneys’ fees—a vanishingly rare outcome—brought in connection with Microsoft’s $19.7 billion acquisition of the company.
• CDK Global, Inc. in securing the denial of a preliminary injunction motion seeking to halt the $8.3 billion merger between CDK Global, Inc. and Brookfield. The court denied the preliminary injunction motion just hours before the tender offer deadline, allowing the all-class action to close shortly thereafter.
• IBM in the successful resolution of shareholder actions alleging disclosure-related claims arising out of IBM’s $34 billion acquisition of Red Hat Inc.
• Taylor Morrison in several merger-related litigations, including in the successful settlement of shareholder lawsuits alleging disclosure-related claims arising from the company’s $2.5 billion acquisition of William Lyon Homes, and in the settlement of disclosure claims related to its $963 million acquisition of AV Homes.
• Shutterfly, Inc. in securing the dismissal, affirmed on appeal by the Third Circuit, of a putative stockholder class action concerning disclosures made in a proxy statement the company issued prior to being acquired in a $2.7 billion transaction.

APPRAISAL LITIGATIONS

• Diamond Resorts International in a consolidated appraisal proceeding in which shareholders who did not tender their shares during the company’s $2.2 billion acquisition by funds managed by affiliates of Apollo Global Management, LLC petitioned for an appraisal of the fair value of their shares.
• Oaktree Capital Management in securing the favorable settlement of an appraisal case regarding Oaktree’s buy-out of Pulse Electronics, as well as in the settlement of related breach of fiduciary duty litigation.
• CKx, Inc. (N/K/A CORE Media Group) in the successful defense of an appraisal proceeding in which the Court of Chancery held, after a full trial on the merits, that the merger price being offered by the acquirer, certain funds managed by affiliates of Apollo Global Management, LLC, was the best available measure of CKx’s fair value. That decision was affirmed by the Delaware Supreme Court.

SECTION 220 DEMAND LITIGATIONS

• Cambrian Innovation, a venture-backed cleantech company, in connection with a Section 220 books and records action brought by a director of the company seeking to compel the production of documents related to a settlement agreement with a stockholder entity headed by the director bringing the action. The earlier settlement stemmed from Cambrian’s acquisition of cleantech company Baswood Inc. from Emerson Collective Investments.
• Virtu Financial in connection with a stockholder Section 220 books and records action seeking information concerning certain distributions made by Virtu to its controlling stockholder.
• Avis Budget Group in the settlement of a Section 220 stockholder books and records action seeking to inspect certain documents related to the fairness of certain transactions made between AVIS and SRS Investment Management, a hedge fund and the company’s largest stockholder.
• Independence Holding Company in connection with a Section 220 books and records action brought by a shareholder seeking to compel the production of documents related to a take-private transaction with Geneve, Inc.
• Outerwall Inc., the parent company of retail kiosks such as Redbox and Coinstar, in connection with a Section 220 stockholder inspection action in order to investigate potential breach of fiduciary duty and other allegations related to the company’s billion-dollar acquisition by funds managed by Apollo affiliates. Following a bench trial, the court denied the plaintiff’s demand entirely.
• Portola Pharmaceuticals, a biotechnology company, in connection with two Section 220 stockholder inspection actions seeking to investigate alleged potential wrongdoing by Portola’s Board of Directors in relation to the company’s $1.4 billion acquisition by Alexion Pharmaceuticals.