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Brian Miller shared with Law360 what could be at stake when the U.S. Supreme Court hears a proposed class action brought by the shareholders of Emulex Corp., who claim were misled about a tender offer for the company. In the lawsuit, shareholders claim they were not told the truth about the value of Avago Technologies Ltd.’s $606 million acquisition offer.

The case could ultimately determine whether the shareholders must prove that the company acted knowingly in withholding the information or was simply negligent. Miller told Law360 that the High Court’s decision may impact how companies structure M&A deals in the future.

“We may see that the M&A bar moves more toward doing transactions as a tender offer as opposed to a merger if the Supreme Court says there is no prior right of action for a tender offer,” Miller said.

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