The Market for Preclusion in Merger Litigation

The recent finding that corporate litigation involving Delaware companies very often takes place outside of Delaware has disturbed the long-settled understanding of how merger litigation works. With many, even most, cases being filed and ultimately resolved outside of Delaware, commentators warn that the trend is a threat to shareholders, to Delaware, and to the integrity of corporate law generally. Although the out-of-Delaware trend suggests that litigants are seeking to use the procedural rules of other jurisdictions to their advantage, we argue that the result need not threaten the interests of any of the stakeholders in deal litigation. We reframe the process of resolving merger litigation as a market for preclusion, in which plaintiffs seek to sell and defendants seek to buy an important element of transactional certainty. Moreover, this market has the potential to efficiently process and price shareholder complaints while also providing benefits to Delaware and to corporate law more generally. We are not blind to reality, however, and also address how a well-functioning market for preclusion can be distorted by the opportunistic conduct of plaintiffs’ and defense attorneys alike. Greater judicial oversight is necessary to preserve the benefits of this market while preventing the distortions brought on through opportunistic conduct. In order to make this a reality, however, judges in different courts must have a means of communicating and coordinating across state lines. We therefore offer a theory of horizontal comity in which judges build trust and cooperation through communication across jurisdictional boundaries. We use this theory to suggest a set of concrete policy proposals designed to provide for a more efficient market for preclusion