Justices Could Trigger Sea Change For Tender Offer Suits
By Martin Crisp, Douglas Hallward-Driemeier, David Hennes and Gregg Weiner (April 18, 2019, 5:30 PM EDT) -- On April 15, 2019, the U.S. Supreme Court heard oral argument in Emulex Corp. v. Varjabedian, a case that could significantly alter the landscape of tender offer litigation under Section 14(e) of the Securities Exchange Act of 1934. Emulex offers an opportunity for the court to take up key questions left unresolved by the court's prior precedent — first, the predicate question of whether Section 14(e) permits an inferred private right of action (an issue left unresolved in Piper v. Chris–Craft Industries Inc.); and second, whether negligent misstatements and omissions, as opposed to those made with scienter, are sufficient to establish a violation of Section 14(e). ...
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