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Noble Prose: Sound Bites on Public M&A

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Posted by Daniel E. Wolf, Kirkland & Ellis LLP, on Wednesday, October 26, 2011
Editor's Note: Daniel Wolf is a partner at Kirkland & Ellis LLP focusing on mergers and acquisitions. This post is based on a Kirkland & Ellis M&A Update by Mr. Wolf and David B. Feirstein. This post is part of the Delaware law series, which is co-sponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

Dealmakers working on public M&A transactions have recently seen increased focus on, and discussion of, what buyers and target boards “can” and “should” do in a sale context. Perhaps as a result of splashy headlines (such as the JCrew and Del Monte situations), market participants are more proactively asking what they need to be thinking about and doing in terms of process, terms and disclosure.

In a day of noteworthy production on September 30, VC Noble of the Delaware Chancery Court issued four significant opinions relating to M&A matters, three of which related to disputed public company transactions. Denying (1) a motion to dismiss post-closing shareholder claims in the infoGroup deal, (2) a motion for a preliminary injunction to block the OPENLANE transaction, and (3) a motion to expedite a preliminary injunction motion to block the AMAG acquisition of Allos, VC Noble offered broad-ranging insights into some of the key issues circulating in the market. While none of the views are necessarily groundbreaking and it is clear the decisions were largely driven by highly fact-specific elements, a quick review of some take-aways from these cases may prove useful as guidance for dealmakers.

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