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By the Annual Survey Working Group of the M&A Jurisprudence Subcommittee, Mergers and Acquisitions Committee, ABA Section of Business Law*
The primary charge of the Annual Survey Working Group is to monitor and summarize annually judicial decisions that we believe are of the greatest significance to M&A practitioners.1
The decisions selected for this year's Annual Survey are
Effect of Non-Use and Non-Disclosure Provisions in Confidentiality Agreements
1. Martin Marietta Materials, Inc. v. Vulcan Materials Co. (enjoining unsolicited public offer for violating non-use and non-disclosure provisions in an NDA)
2. Goodrich Capital, LLC v. Vector Capital Corp. (declining to dismiss claim for breach of non-use provision where defendant allegedly used information provided by plaintiff to evaluate a target in the same industry)
Successor Liability - De Facto Merger Doctrine
3. Flavors & Fragrances, Inc. v. St. Paul Protective Insurance Co. (continuity of ownership requirement)
4. Fizzano Bros. Concrete Products, Inc. v. XLN, Inc. (continuity of ownership requirement)
Reliance Clauses
5. RAA Management, LLC v. Savage Sports Holdings, Inc. (preclusion of liability for fraud by non-reliance provision)
6. Barr v. Dyke (upholding non-reliance clause against claims of fraud and unjust enrichment)
Assignments of Agreements
7. DBA Distribution Services, Inc. v. All Source Freight Solutions, Inc. (reverse triangular merger violates prohibition on assignment by operation of law)
8. Coughlan v. NXP B.V. (two-step asset transfer treated under the step transaction doctrine as single transaction violating assignment prohibition)
Agreements to Negotiate
9. EQT Infrastructure Ltd. v. Smith (finding a "plausible" agreement to negotiate in good faith without additional conditions)
10. PharmAthene, Inc. v. SIGA Technologies, Inc. (enforcement of agreement to negotiate and imposition of equitable license)
Controlling Shareholders
11. In re Synthes, Inc. Shareholder Litigation (equal consideration for all shareholders as safe harbor to get to business judgment rule in sale of controlled company)
12. Frank v. Elgamel (merger of controlled corporation with unaffiliated company subject to entire fairness review when controllers roll over)
13. Americas Mining Corp. v. Theriault (special committee process not effective and over $2 billion awarded for controlling stockholder's breach of fiduciary duty)
Exclusivity Agreements
14. Vector Capital Corp. v. Ness Technologies, Inc. (dismissing claim of breach of exclusivity agreement)
Fiduciary Duties in the LLC Context
15. Auriga Capital Corp. v. Gatz Properties, LLC (LLC...