This seminar will focus on major corporate and securities cases, often in the "M&A" context. The standard format will be to invite in a judge (typically from the Delaware Chancery Court or the Southern District of New York) along with the lawyers on both sides to review and evaluate their litigation strategy. Certain famous cases—WorldCom, and QVC Paramount—will be used, but smaller class actions, SEC enforcement cases, and criminal cases will also be used. The focus is not on the substantive law, but on the lawyers’ key strategies (i.e., to divide and conquer, or move the forum jurisdiction). How did their strategy change as the case progressed? Why, when and how did the case settle (or why did it not settle)? What factors, if any, besides the legal merits affected the outcome, including (1) adverse publicity, (2) divisions within the client, (3) the attitude of the insurers, and (4) competition or rivalry within the defendants' camp or the plaintiffs' camp?
This focus on litigation strategy is intended to offset the hindsight bias that naturally arises in law school because students generally read only reported decisions, which tend to lead them to view the facts as fixed and the outcome as obviously foreshadowed. The premise of this seminar is that uncertainty is the key characteristic of large-scale litigation, with both sides having to estimate how the court or jury will respond to disputed facts and legal theories. As a result, litigation decision-making in the real world is contingent; strategies and the settlement odds necessarily change as rulings occur. The focus of the seminar is not on what the "right" decision was, but how attorneys strategize, maneuver, and negotiate to best represent their clients. Grading will balance in-class participation with a seminar paper.