On January 30, 2025, the Second Circuit affirmed the District Court’s dismissal with prejudice of a putative Section 14(a) claim seeking to undo a $2.9 billion take-private merger between Sumitovant Biopharma Limited (Sumitovant, n/k/a Sumitomo Pharma America Inc.) and Myovant Sciences Limited (Myovant).  Shareholder plaintiffs argued that Myovant’s publicly filed proxy was defective because it failed to disclose potential conflicts on the part of the Special Committee’s counsel, Skadden Arps, based on Skadden’s work for unrelated Sumitomo entities.  In January 2024, Freshfields defeated a shareholder’s effort to challenge a $2.9 billion dollar take-private merger between Sumitovant and Myovant by obtaining dismissal, with prejudice, of all claims in the Plaintiff’s class action complaint.

Plaintiff appealed and on January 30, 2025, a three-judge panel for the Second Circuit affirmed the district court was correct to dismiss the suit and declined to give plaintiff an opportunity to (yet again) amend his complaint.  The Second Circuit held that Plaintiff’s allegations “amount to speculation,” and “do not plausibly support an inference that Skadden’s advice in the Myovant transaction could have been impacted by virtue of its representation of other Sumitomo Group entities.” The Court stressed that the contentious nature of negotiations, which involved multiple offers and the consideration of a third-party bidder, undercut Plaintiff’s argument that this was a friendly deal. The Court also upheld Judge Rakoff’s decision to deny leave to amend, as Plaintiff failed to identify specific facts he wanted to include in his amended complaint if given leave to replead.

The Freshfields team included partners David Yury Livshiz and Boris Feldman, counsel Peter J. Linken and associates Elena Hadjimichael, Nathan A. Hembree, Abby Kritta and Jake Rothstein.