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M&A Litigation

When it comes to high-stakes, complex M&A litigation, we leverage a combination of financial, economic, and real-world expertise to successfully advise acquirers, targets, fiduciaries, and courts.

Brattle’s experience in pre- and post-closing M&A litigation includes a broad range of legal claims that require complex valuation, credit and other financial analyses, and expert opinions regarding custom and practice. We provide compelling and effective consulting and expert testimony in federal, state, and international jurisdictions and in commercial disputes in international arbitration forums. As necessary to meet our client’s needs, we leverage Brattle’s global network to collaborate with our colleagues and outside experts in bankruptcy/restructuring, securities, tax, antitrust, and alternative investments.

Across industries, geographies, and corporate structures, Brattle combines a practitioner perspective with leading corporate finance research. We are deeply familiar with fundamental corporate finance theory as well as emerging academic research. In addition, we have substantial experience in providing financial and economic interpretation and analyses of deal negotiations, transaction structures, purchase agreements, and transaction financing arrangements.

Brattle’s experts have consulted and testified in leading M&A jurisdictions, including Delaware Court of Chancery, Southern District of New York (SDNY), London, Ontario, Cayman Islands, and International Chamber of Commerce (ICC) forums.

Our Focus

  • Alleged breach of fiduciary duty
  • Dissenting shareholder (appraisal) actions
  • Corporate governance disputes
  • Material adverse effect litigation and arbitration
  • Special board committee advisory and investigations
  • Business enterprise and securities valuations

Engagements
REPRESENTATIVE ENGAGEMENTS

Below is a list of representative engagements for our M&A Litigation practice.

Material adverse effect (MAE) litigation

In a COVID-triggered MAE dispute between Gilat Satellite Networks (the target company) and Comtech Telecommunications (the acquiring company), Brattle was engaged by Gilat to provide financial and economic analyses to address Comtech’s allegations that Gilat had experienced an MAE. Comtech had previously agreed in January 2020 to acquire Gilat for total consideration of $577.3 million. The litigation was settled in October 2020, following submission of expert reports and deposition testimony by a Brattle principal. As part of the settlement, Comtech agreed to pay Gilat $70 million.

Shareholder appraisal action on behalf of a petitioner

A Brattle principal was retained by a significant shareholder of Calamos Asset Management, a publicly traded company, in connection with appraisal litigation in the Delaware Court of Chancery. The litigation involved the merger by which Calamos was purchased and taken private by its parent company at cash consideration of $8.25 per share. Following the submission of expert reports and deposition testimony by a Brattle principal, our client opted out of the class settlement and separately settled with the defendants on confidential terms.

Shareholder appraisal action on behalf of a respondent

In a stockholder appraisal action brought by a large shareholder of a billion-dollar financial services company, a Brattle principal advised the acquiring company to evaluate the petitioner’s appraisal demand. In the trial in the Delaware Court of Chancery, he supported a testifying expert, who effectively argued that the final merger consideration was fair, basing his testimony on contemporaneous market evidence and a discounted cash flow valuation analysis. The Court agreed, and rejected the petitioners’ claim.  

Fiduciary duty claim and appraisal action

In a case involving a combined breach of fiduciary duty claim and appraisal action resulting from a billion-dollar acquisition in the telecom industry, a Brattle principal supported the acquiring company in determining the standalone fair value of the acquired company. He supported a testifying expert to show that the standalone value of the acquired company was $2.13 per share. The Delaware Chancery Court accepted this recommendation in full, resulting in a determination of fair value that was more than 50% below the $5 per share merger consideration.

Shareholder challenge to Facebook proposed stock reclassification

A Brattle principal submitted reports and testified at deposition on the harm to Facebook Class A shareholders that a proposed issuance of non-voting stock would cause. Shareholders sought to enjoin the issuance of such shares. Facebook cancelled its plans to issue the non-voting stock five days before the trial in Delaware Chancery Court was set to begin.

Breach of fiduciary duty in related party transaction

A Brattle principal worked on behalf of the plaintiff alleging a breach of fiduciary duty arising from Starz’s sale to Lionsgate. The plaintiff claimed that Starz’s controlling shareholder orchestrated the merger to benefit himself at the expense of a group of stockholders. The Brattle principal submitted reports and testified in deposition on behalf of the stockholders, opining on the value of Starz and the controlling shareholder’s financial incentives. The matter settled favorably for our client with an award of $92.5 million. 

Valuation of stocks in dual-class stock merger

On behalf of the class of ACS common shareholders in a proposed $6.4 billion merger with Xerox, a Brattle principal submitted expert reports and testified at deposition on the entire fairness of the additional consideration offered to a high-voting class of ACS stock held by the CEO and controlling shareholder. His analysis focused on the value of the stock and precedent for differential consideration in dual-class stock mergers, as well as the valuation of ACS performed by ACS’s financial advisor for its special committee. The case led to one of the largest class recoveries in the history of the Delaware Court of Chancery.

Alleged self-dealing in a derivative suit

A Brattle principal submitted reports and testified at deposition in a derivative suit on behalf of American International Group, Inc. shareholders against the company's former CEO, Maurice Greenberg, and other former AIG executives. The action related to allegations of self-dealing between AIG and a spin-off controlled by Greenberg and other defendants. The matter concluded with a settlement of $115 million, the largest such settlement in the history of the Delaware Court of Chancery.

Experts
Publications
Article
Can Mispricing Explain the Value Premium?
September 2020
Published in Financial Management
Article
Valuation Analysis of Related-Party Transactions
March 2018
Published in the American Bankruptcy Institute (ABI) Journal, Vol. XXXVII, No. 3
Article
Snapshot of Delaware Public Company Appraisals Post-CKx
February 24, 2017
Published in Deal Points, Volume XXII, Issue 1 Winter 2017

This article discusses Delaware’s public company appraisals following the CKx decision, using specific examples to demonstrate that petitioners and respondents continue to assert widely divergent values in appraisal cases.

Article
BMC Software's Lessons For Expert Witnesses
February 23, 2016
Published on Law360
Article
Delaware Appraisal Case Reaffirms Valuation Premium for S Corporations
September 15, 2015
Published in Deal Points
Article
Returns to Acquirers of Public and Subsidiary Targets
January 2015
Torben Voetmann, Jeffrey Jaffe, Jan Jindra, and David Pedersen
Published in the Journal of Corporate Finance
Report
Recent Guidance from the Delaware Court of Chancery - Summer 2013
August 2013
Published by The Brattle Group, Inc.
Article
Recent M&A Litigation Provides Updated Guidance for Fairness Opinions
April 2012
Published in Deal Points of the American Bar Association's M&A Committee
News & Knowledge
October 21, 2020
Benjamin Sacks to Participate in Webinar on Valuation and Forensic Accounting

Brattle Principal Benjamin Sacks will participate in The Knowledge Group’s webinar, “Valuation and Forensic Accounting: Demystifying Trends, Critical Issues, and Best Practices,” taking place Wednesday, October 21 from 9:00–10:00 a.m. (PT) / 12:00–1:00 p.m. (ET).

September 08, 2020
Torben Voetmann Coauthors Financial Management Article on the Mispricing Component of Market-to-Book Ratios

Brattle Principal Torben Voetmann has coauthored an article published in Financial Management that closely analyzes the mispricing component in market-to-book (MTB) ratios.

May 24, 2019
Lucrezio Figurelli to Present at the Italian Antitrust Association National Conference

Brattle Senior Associate Lucrezio Figurelli will speak at the Italian Antitrust Association (AAI) National Conference on the Main Developments in the Law of Competition of the European and National Union, to be held May 23-24 in Florence, Italy.

September 15, 2018
Yvette Austin Smith, Torben Voetmann, and Bin Zhou to Present at ABA Business Law Section Annual Meeting

Brattle Principals Yvette Austin Smith, Torben Voetmann, and Bin Zhou will speak at the American Bar Association (ABA) Business Law Section Annual Meeting, to be held September 13-15 in Austin, TX.

September 07, 2018
Brattle Contributes to Shareholder Settlement in Starz Merger with Lionsgate

Brattle Expert Benjamin Sacks opined in reports and testified at deposition on behalf of the Series A stockholders regarding the value of Starz and Mr. Malone’s financial incentives.

February 24, 2017
Yvette Austin Smith Authors Deal Points Article on Delaware's Public Company Appraisals Post-CKx

Brattle Principal Yvette Austin Smith has authored an article discussing Delaware’s public company appraisals following the CKx decision, using specific examples to demonstrate that petitioners and respondents continue to assert widely divergent values in appraisal cases.

February 23, 2016
Torben Voetmann and Sujay Dave Author Law360 Article on the Use of Valuation Experts Following the BMC Software Decision

Brattle Principal Torben Voetmann and Senior Associate Sujay Dave have authored a Law360 article on the Merion Capital LP and Merion Capital II LP v. BMC Software opinion and the lessons learned for experts when opining on fair value in Delaware.