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Barry M. Klayman and Mark E. Felger Barry M. Klayman and Mark E. Felger.

Selling stockholders in a buy-sell agreement typically designate a shareholder representative to act as their agent and attorney-in-fact with respect to all matters relating to the agreement, including acting on their behalf in connection with any claims under the agreement. The shareholder representative structure promotes efficiency in closing the deal and in adjudicating post-closing disputes. In Fortis Advisors v. Allergan W.C. Holding, C.A. No. 2019-0159-MTZ (Del. Ch. May 14, 2020), the counterparty sought to bypass the agreed-upon shareholder representative by moving to treat the selling stockholders as parties for purposes of discovery and trial. Vice Chancellor Morgan T. Zurn denied the motion, holding that the merger agreement’s shareholder representative structure identified the shareholder representative as the real party in interest and did not give the shareholder representative control over the selling stockholders’ discoverable material.

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