Litigation Trailblazers

Pioneer Spirit: Yosef Riemer spent six years on Capitol Hill before going to law school. "Litigation seemed most like the kind of work I had done organizing hearings while working on Capitol Hill. In retrospect, I really didn't have much understanding of what other kinds of practices involved."

Trails Blazed: Riemer's complex commercial litigation work includes the BMC Software matter. "There is a procedure through which shareholders objecting to a sale can get an appraisal where the court can set fair market value. By and large, those cases have been decided by parties coming in with competing experts. But we said, if the sale process is robust enough, that would be better evidence of fair value rather than experts running models. The market had spoken, or someone would have paid more. This was unique because we didn't argue that the discounted cash flow wouldn't work." While the case was argued over fair value, Riemer tried it more like a fiduciary duty case. "We demonstrated that the sale process was robust and provided a better basis for analysis than a discounted cash flow."

Future Explorations: The biggest changes will be around appraisal cases. "There's a dramatic increase in the amount of this activity. We are seeing people 'buying into the appraisal,' or buying in after the deal is announced in order to bring the argument that the appraisal is unfair. These are going more and more often to Delaware." There will be fewer “disclosure only” settlements. "Courts are discouraging them. Some judges are creating incentives for plaintiffs instead of challenging deals for additional disclosure before closing, to instead let the deals close and then argue that it wasn't enough. More plaintiffs are focusing on the post-closing aspects of these cases.”

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