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,[1] a case that could significantly alter the landscape of tender offer litigation under Section 14(e) of the Securities Exchange Act of 1934.[2] 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.[3]); 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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