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Program Details

Let the Seller Beware: The Seller's Attorney-Client Privilege Passes in a Merger under Delaware Law

Content Partner:  West LegalEdcenter and Westlaw GC
Price: $195.00*
This program is no longer available.

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In Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, the Delaware Court of Chancery recently held that control of the attorney-client privilege of the target corporation passes to the acquiror in a merger.  As a result, neither the target nor its principals may assert privilege over merger-related communications with the target’s deal counsel in a post-closing dispute.  This rule, adopted by then-Chancellor and now Chief Justice Strine, conflicts with the one adopted by the New York Court of Appeals nearly two decades ago.
Importantly, however, it is a default rule, and merging parties are free to contract around it.  Practitioners and commercial parties are still grappling with Great Hill and assessing its implications, from transaction planning, contracting, and litigation perspectives.  This presentation will briefly recap the Great Hill decision, attempt to put it in context, and highlight some of the issues confronting practitioners going forward, including the following:
•         How transaction planners should address Great Hill in preparing for their transactions, both on the target side and from the perspective of the acquiror;
•         How contract drafters should address Great Hill in their deal documents to memorialize the parties’ agreement and minimize the risk of an inadvertent waiver of privilege;
•         How law firms can implement these contractual protections practically to avoid an inadvertent waiver of the contractually allocated privilege; and
•         How corporate counsel should address Great Hill in advising their clients in preparation for a sale to prevent putting the firm in an avoidable conflict situation.
Michael Sirkin focuses on litigating corporate and other business disputes in the Delaware Court of Chancery.  Michael specializes in expedited M&A litigation, including cases involving the fiduciary duties of corporate directors and officers in various transactional contexts. Michael began his legal career as a judicial law clerk to the Honorable Vice Chancellor J. Travis Laster of the Delaware Court of Chancery.
John DiTomo is a partner with the Corporate and Business Litigation Group.  His practice focuses on corporate and commercial litigation in the Delaware Court of Chancery and appellate practice in the Supreme Court of the State of Delaware.

Practice Areas: Corporate & Securities, Corporate Governance, Mergers & Acquisitions, Securities & SEC Regulation, Shareholder Litigation
Online Media Type: Audio
Production Date: 06/11/2014 12:00 PM EDT
Level: Intermediate
Category: Standard
Duration: 1 Hours, 0 Minutes
Online Format: Live
Course Type: Public

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Total Credits: 1
Specialty Credits: 
Status: Reciprocal Credit Available
Expiration: N/A
Training Type: Online

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S. Michael Sirkin - Associate - Seitz Ross Aronstam & Moritz LLP, Wilmington
John P. DiTomo - Partner - Morris, Nichols, Arsht & Tunnell LLP, Wilmington
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