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Jeld-Wen: Opening the door to private merger challenges?

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Private merger challenges can be messy, time consuming, and expensive, particularly when a private plaintiff is seeking to unwind a previously consummated transaction. Plaintiffs seeking divestiture from private merger challenges rarely have been successful, and such cases tend not to move the needle too much because they are often fact specific and thus limited in their application. In February 2021, however, the Fourth Circuit Court of Appeals granted divestiture in Jeld-Wen, a private merger challenge, years after the merger had been consummated.

Although the court’s decision in Jeld-Wen is an outlier, it provides precedent upon which future private plaintiffs can rely to seek divestiture in private litigation. In this article written for the Journal of the Antitrust and Unfair Competition Law Section of the California Lawyers Association, Winston attorneys Neely Agin, Susannah Torpey, and Dana Cook-Milligan center Jeld-Wen within the history of private challenges in the United States and discuss how this decision may fit into the landscape of future private merger litigation.

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