Article & Journal Resources: Sexy M&A Litigation: Judge Orders Specific Performance!

Article & Journal Resources

Sexy M&A Litigation: Judge Orders Specific Performance!

Specific performance. If those two words don't take you back to first-year contracts, we're not sure what will. (The pregnant-cow case, perhaps? Or Raffles v. Wichelhaus?)

Courts don't often grant specific performance in contract disputes -- i.e., enforcing a transaction against a party that doesn't wish to complete it. Rarer still: A judge who grants specific performance to enforce a billion-dollar M&A deal.

But that's exactly what Tennessee chancery-court judge Ellen Hobbs Lyle did yesterday, ruling that Finish Line must complete its $1.5 billion acquisition of rival retailer Genesco. She criticizes Finish Line and its UBS bankers for how they handled details of the merger. The judge concluded that Finish Line's contract was too solid to be broken by claims of material adverse changes at Genesco. (Law Blog Editorial Nugget: It's unfair that Delaware gets all the sexy corporate litigation. Isn't it nice to see states like Minnesota and Tennessee get in the mix?)

The WSJ points out that Finish Line could still wiggle its way out of the deal. UBS, which is financing the deal, has filed a separate lawsuit in New York state court arguing that it would be funding a merger that would create an insolvent company. If UBS can persuade the court of that, Chancellor Lyle said, she would "halt the merger." (Law Blog Trivia: Most states have merged chancery courts, or courts of equity, with courts of law. Four have not -- Delaware, Mississippi, Tennessee and New Jersey.)

The 43-page ruling is a big win for Genesco's lawyers, led by lead trial counsel Jim Denvir of Boies Schiller & Flexner and the Law Blog Moustache Society.

And if you're sorry to see this case and the United Rentals-Cerberus spat come to an end, have no fear. It looks like there will be plenty of sexy M&A litigation well into '08. Yesterday, private equity shop Platinum Equity sued PPG Industries in New York state court to terminate or renegotiate its $500 million deal for the company's auto-glass business, arguing that the business is in worse shape than PPG had indicated during negotiations. In the complaint Platinum called PPG's conduct "repugnant, wanton, and involved a high degree of moral turpitude." PPG said the claims are without merit.

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