Going-Private Transactions: Deal Structure Considerations, SEC Disclosure Obligations, Fiduciary Duties and More

Structuring Deals and Implementing Procedural Safeguards to Withstand Heightened SEC and Stockholder Scrutiny

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

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Conducted on Thursday, October 15, 2015

Recorded event now available

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Course Materials

This CLE course will examine the benefits and risks of going-private transactions and discuss best practices for deal counsel involved in taking a public company private. The panel will review key considerations regarding SEC mandatory disclosures, fiduciary duties, timing and structure of the transaction, avoiding litigation pitfalls, and more.


Going-private transactions are significantly more challenging than other sale transactions as a result of complex SEC disclosure issues, additional legal requirements for public company transactions, developments in state law affecting directors’ discharge of their fiduciary duties, increased judicial scrutiny of independence of investment banks serving as financial advisors and law firms serving as legal advisors to special committees, and increased price-related exposure as a result of opportunistic funds buying rights to pursue appraisal proceedings in connection with these transactions.

The SEC recently initiated actions against corporate insiders for failure to comply with required SEC stock ownership disclosures in connection with a potential going-private transaction. In addition, the recent ruling in the appraisal proceeding related to the Dole Food Co. take private transaction prompts cautionary action by corporate boards and their advisors. Given the heightened SEC scrutiny and the likelihood for breach of fiduciary duty and other lawsuits, counsel must approach these transactions strategically and cautiously to avoid unintended consequences and increased litigation exposure.

Listen as our authoritative panel explains best practices for managing the legal and practical challenges of going-private transactions. The panel will discuss SEC mandatory disclosures, fiduciary duties, timing and structure of the transaction, as well as strategies to manage advisors to maintain their independence, to avoid increased litigation exposure, and more.



  1. Current trends with going-private transactions
  2. Key considerations with going-private transactions
    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


The panel will review these and other key issues:

  • What are the factors driving publicly held companies to convert to private ownership?
  • What federal and state laws govern going-private transactions?
  • What special requirements does SEC Rule 13e-3 impose on companies converting to private ownership?
  • How do going-private transactions increase fiduciary duty liability exposure for corporate officers and directors?
  • What are the key strategic considerations that companies must consider when planning going-private transactions in order to minimize SEC scrutiny and litigation risks?


Davis Eva
Eva Davis

Winston & Strawn

Ms. Davis counsels domestic and international clients in public and private M&A transactions, public and private...  |  Read More

Rosener, James
James D. Rosener

Pepper Hamilton

Mr. Rosener is a partner in the Commercial Department of Pepper Hamilton LLP. He heads the firm's International...  |  Read More

Silfen, Richard
Richard A. Silfen

Duane Morris

Mr. Silfen practices in the area of corporate law with concentrations in securities and mergers and acquisitions....  |  Read More

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