Kevin Miller was a featured panelist during this webcast sponsored by DealLawyers.com. Over the last several years the Delaware Court of Chancery has increasingly been willing to grant expedited discovery and injunctive relief and approve awards of plaintiffs' attorney's fees with respect to disclosure claims alleging inadequate disclosure of financial projections and the results of the financial analyses underlying fairness opinions, effectively holding that such information is per se material, even in situations where the Delaware Supreme Court has previously upheld the dismissal of virtually identical claims. The panel discussed how the dynamics of those disclosure claims - including the procedural posture and risk/reward analysis of a potential appeal by defendants - are causing outside counsel to transaction participants to recommend increasingly detailed disclosure of such information in merger proxies and notices of appraisal rights. The following topics were covered during the program.
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Are projections, including projected free cash flows, required to be disclosed?
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What level of detail regarding the financial analyses underlying fairness opinions is required to be disclosed?
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How does the procedural posture and remedies awarded for such disclosure claims limit the likelihood of appeal?
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What are the practical implications of the foregoing when advising boards of directors and financial advisors?
February 16, 2012
2:00pm - 2:45pm