Going Private: Legal and Strategic Considerations

Structuring Transactions to Withstand Court and SEC Scrutiny

Recording of a 90-minute premium CLE webinar with Q&A

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Conducted on Tuesday, August 17, 2010

Recorded event now available

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Course Materials

This CLE course will prepare corporate counsel to overcome the legal and practical challenges associated with going private transactions, including fiduciary duty issues, procedural requirements and mandatory disclosures.


Going private transactions are increasing as debt markets thaw and public companies seek to escape overwhelming reporting and corporate governance obligations imposed by SOX. Going private transactions must comply with numerous state and federal laws as well as special SEC requirements.

These transactions are often challenged in court on claims of breach of fiduciary duties and failure to comply with mandatory disclosure requirements. Careful planning is critical when structuring the transactions to avoid unintended consequences, including increased litigation exposure.

Listen as our panel of attorneys who specialize in corporate law explains best practices for dealing with the legal and practical challenges arising during going private transactions. The panel will discuss fiduciary duty issues, procedural requirements and mandatory disclosures.



  1. Key issues to consider when planning a going private transaction
    1. Structure of the transaction
    2. Litigation risks
    3. Disclosure obligations
    4. Timing considerations
    5. Competing offers
    6. Fiduciary duties of directors and “fairness”
    7. Affiliate issues
    8. Standard of judicial review
  2. Anticipated impact of In re CNX Gas Corp. Shareholders Litigation, (Del. Ch. May 25, 2010) and related Delaware cases
  3. Current trends with going private transactions; expectations for the future
    1. Delaware developments
    2. SEC updates


The panel will review these and other key questions:

  • What are the factors driving publicly held companies to convert to private ownership?
  • What impact will the recent In re CNX Gas Corp. Shareholders Litigation decision have on the fiduciary duty issues involved in going private transactions?
  • What federal and state laws govern going private transactions?
  • What special requirements does SEC Rule 13e-3 impose on companies converting to private ownership?
  • What are the key strategic considerations that companies must consider when planning going private transactions in order to minimize SEC scrutiny and litigation risks?


Nancy L. Sanborn
Nancy L. Sanborn

Davis Polk & Wardwell

She represents clients in private equity investments, mergers and acquisitions transactions and acquisitions of...  |  Read More

Darrel A. Rice
Darrel A. Rice

Haynes & Boone

He has more than thirty years of experience in diverse areas of corporate finance, including mergers and acquisitions,...  |  Read More

James D. Honaker
James D. Honaker

Morris Nichols Arsht & Tunnell

Mr. Honaker's practice focuses on corporate governance, mergers and acquisitions and related issues involving the...  |  Read More

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