North Carolina Law Review
Mark J. Loewenstein, Tender Offer Litigation and State Law, 63 N.C. L. Rev. 493 (1985), available at http://scholar.law.colorado.edu/articles/1029.
The recent spate of hostile takeover battles has focused attention and criticism on the federal securities laws. Most claims of defeated offerors and disappointed shareholders have been based on sections 14(e) and 10(b) of the Securities Exchange Act of 1934. The United States Supreme Court, however, has limited such federal remedies and suggested that plaintiffs bring state-law actions for interference with a prospective economic advantage. Professor Loewenstein discusses this tort, which has not been used widely in this context, and reviews the tort's traditional elements, its formulation in the Restatement (Second) of Torts, and its recent treatment by state courts. He concludes that interference with a prospective economic advantage could provide an effective remedy in tender offer litigation, although certain defenses, if broadly interpreted, may be obstacles to recovery.
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