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M&A Shareholder Litigation
Shareholder litigation involving mergers and acquisitions (M&A) has received much attention by courts and commentators. Notwithstanding the increasing scrutiny, especially regarding the propriety and amount of plaintiffs' attorney fee awards, it remains almost inevitable that an entrepreneurial member of the plaintiff's bar will initiate litigation immediately following announcement of a proposed merger or going private transaction by a corporation. See Olga Koumrian, Shareholder Litigation Involving Mergers and Acquisitions, Cornerstone Research 1 (March 2014) (“For the fourth consecutive year, shareholders filed suit in more than 90 percent of M&A deals valued over $100 million.”), available at http://bit.ly/1nqvwS4 (Cornerstone 2014 Report). Indeed, notwithstanding calls for reform, in some respects transaction-related litigation has increasingly, although begrudgingly, become accepted by companies as part of the cost of doing a public company M&A deal.
Many of these lawsuits are resolved through a so-called “disclosure-only” settlement ' meaning that in return for settlement of the lawsuit, shareholders receive supplemental disclosures regarding the proposed transaction and nothing else. According to the most recent available data from Cornerstone Research, in 2012, 81% of the merger and acquisition shareholder suits that resulted in a settlement were disclosure-only settlements. See Robert M. Daines & Olga Koumrian, Shareholder Litigation Involving Mergers and Acquisitions, Cornerstone Research 1 (February 2013 Update), available at http://bit.ly/1l7ZKb4.
One practical aspect of disclosure-only settlements that has received little attention, however, is the practice of providing lengthy individual mailed notice of the disclosure-only settlement to class members, which results in additional (and largely unnecessary) costs that, depending on the number of beneficial owners requiring notice, can exceed tens of thousands of dollars.
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