Professor Steven Davidoff provides scholarly and statistical analysis of M & A litigation in a recently published article, in which he also addresses the issue of whether Delaware is “losing” that type of litigation to other states, and related aspects of this topic. His article entitled: “A Great Game: The Dynamics of State Competition and Litigation“, with University of Notre Dame professor Matthew D. Cain, is available here. The abstract explains as follows:
We provide a multi-dimensional picture of jurisdictional competition for corporate litigation by examining merger litigation in a hand-collected sample of 955 takeovers from 2005-2010. We find that entrepreneurial plaintiffs’ attorneys drive this competition by bringing suits in jurisdictions which have previously awarded more favorable judgments and higher fees and by avoiding unfavorable jurisdictions. States with an interest in attracting corporate litigation respond in-kind by adjusting judgments and awards to re-attract litigation. Competing states award higher attorneys’ fees and dismiss fewer cases when attorneys have been migrating to other jurisdictions. Our findings illuminate the dynamics of jurisdictional competition for corporate litigation.
The good professors have also released preliminary statistics for takeover litigation in 2011 in a six page report available here. The highlights they provide are as follows:
Highlights from 2011:
** Delaware Attracts Highest Rate of Litigation in 7 Years
** Takeover Litigation Continues to Increase
**Lawsuits Brought in 94% of Takeovers versus 85% in 2010
** Half of Transactions Have Lawsuits in Multiple States
** Average Attorneys’ Fee Awards Decline by 27%