Securities litigation is undergoing a quiet but consequential transformation. The rise of artificial intelligence and a shifting regulatory environment are changing not only the types of claims being brought, but also how plaintiffs plead cases, how regulators shape and enforce rules, and how companies manage litigation risk. Together, these forces are challenging traditional approaches that no longer fit the realities of today’s market.

As these dynamics evolve, companies and their advisors are being pushed to rethink disclosure practices, litigation strategy, and the role of experts earlier than ever in the process. Precision, innovation, and the ability to translate complex financial and market data into defensible positions have become increasingly critical, particularly at the motion to dismiss stage, where cases are often won or lost outright.

We sat down with Eric Poer, Managing Director at Secretariat International, an expert advisory and disputes consulting firm whose professionals have worked on some of the most impactful matters across the globe, to discuss the changing landscape of securities litigation.

Q: Can you tell us about Secretariat and your role within the firm?

A: Secretariat is a leading advisory firm that specializes in disputes and investigations with more than 700 experts and advisors worldwide. Our experts have been engaged by most of the Am Law 100 law firms and have completed more than 10,000 engagements on six continents. We operate strategically, growing by selectively hiring top-tier professionals who not only bring deep subject matter expertise, but also fit a highly collaborative and entrepreneurial culture.

I now lead Secretariat’s securities litigation and complex financial disputes practices. Our work sits at the intersection of financial markets, regulation, and litigation, supporting clients in matters where the factual, economic, and accounting issues are both highly technical and highly consequential. I have practiced in this area for more than 20 years and have worked on some of the largest, most complex, and highest-profile securities litigation and investigations matters in the country, including the Wells Fargo sales practices investigation, one of Apple’s most significant securities litigation matters, the recent Rivian Automotive securities litigation related to its IPO, and many more.

Q: What types of clients and matters does your practice focus on?

A: Our primary clients are Am Law 100 law firms and directors and officers facing regulatory inquiries, enforcement actions, or securities litigation. We are most often engaged in situations where the issues are technically demanding and time-sensitive, and where early strategic decisions can materially affect the trajectory of a case. From an industry perspective, we routinely work with large, global financial institutions and many of the most highly regarded Fortune 100 technology companies in the world.

The matters we typically work on include securities class actions, derivative litigation, complex financial disputes, including damages assessments, and forensic investigations involving disclosure issues, market activity, valuation, or transaction-related allegations. Increasingly, we are brought in early, often before a motion to dismiss is even filed. At this early stage, we help to shape defense strategy before positions harden and costs escalate.

Q: What differentiates your securities litigation practice from others in the market?

A: The core differentiator is our expert-led, technology-enabled team model. We operate with a lean, deeply experienced group of professionals who have worked together for more than 15 years. That continuity matters. It allows us to move quickly, communicate efficiently, and apply judgment that has been refined across decades of dealing with similar matters.

Our size also enables us to take a highly strategic and tactical approach. Rather than applying a one-size-fits-all framework, we tailor our analysis to the specific allegations and strategic objectives of each case. We are technology-enabled, but expert-driven—the tools support the analysis, not the other way around.

Just as important, we are comfortable going very narrow and deep. In many cases, the most impactful issues hinge on a very specific nuance and our clients require niche expertise to support their needs. We have access to more than 1 million industry experts that we frequently partner with to supplement our accounting, economic, and financial experts. Our experience allows us to surface those nuanced issues early and help clients focus their resources where they matter most.

Q: How have client expectations in securities litigation evolved in recent years?

A: Securities litigation is quickly changing—both procedurally and due to technological shifts.

Settlements are increasingly growing, with median settlement value in 2025 at a 10-year high, particularly if a matter survives a motion to dismiss. As a result, clients increasingly expect advisors who can help them win—or significantly narrow—the case early. There is far less appetite for broad, unfocused analysis. Instead, clients want precision, credibility, and a clear articulation of why certain theories fail under scrutiny at the pleadings stage.

This has elevated the importance of targeted financial and market analysis and the ability to respond creatively and credibly when translating complex technical issues into persuasive, defensible positions under intense judicial scrutiny.

In addition, clients increasingly expect that experts know how to use AI effectively and responsibly. Deliverables that rely on generative or analytical AI must meet rigorous and defensible standards—with robust human oversight.

Q: What major enforcement and regulatory shifts are influencing securities litigation this year?

A: One of the most notable shifts is the increased role of state attorneys general in enforcement activity. As federal enforcement priorities have shifted and staffing reductions have affected agencies like the SEC and DOJ, state attorneys general appear poised to step in to fill perceived gaps. That dynamic introduces new risks for companies that may have historically focused their compliance and litigation strategies on federal regulators.

At the same time, the SEC itself has undergone significant changes, with more anticipated. These developments are creating uncertainty, but also opportunity, for public companies as they reassess disclosure practices, governance structures, and litigation risk.

Q: What about arbitration provisions as a way to limit litigation?

A: One of the more interesting and potentially transformative developments is the emerging opportunity for public companies to enforce arbitration provisions that could limit or eliminate securities class actions as we know them. The SEC has taken a more neutral stance on arbitration clauses in registration statements, opening the door for companies to revisit this issue.

What’s especially significant is that costs for companies and insurers could skyrocket, while opportunities for plaintiffs could diminish. Securities class actions in their current form, often lasting for several years, are still far more efficient than dozens or even hundreds of individual arbitration claims, each requiring separate defense.

It is an area that warrants close attention, as future challenges and regulatory responses will shape how viable this strategy ultimately becomes.

Q: We haven’t really talked about the focus that seems to be on everyone’s minds these days: artificial intelligence. How is AI influencing securities litigation?

A: AI-related securities claims have emerged as one of the most significant recent developments. Plaintiffs are increasingly focusing on alleged misrepresentations about companies’ AI capabilities, deployment, or strategic importance. Many of these cases revolve around what has been described as “AI-washing,” where companies are alleged to have overstated the sophistication or impact of AI initiatives.

Plaintiffs are testing how courts will evaluate statements about AI that may be aspirational, forward-looking, or grounded in rapidly changing technical realities. As a result, we are seeing that AI-related filings generally have been dismissed at a lower rate than other filings but are settled at a higher rate.

Outside of trends in securities class actions, my personal view is that we need to be leaning into AI or we’ll be left behind. At Secretariat, we are actively pursuing and implementing opportunities to utilize AI in a smart and responsible way.

We like to equate AI to a first-year analyst. It’s smart and capable but needs to be checked for accuracy and reasoning. So yes, we are always looking for ways to deploy advanced technology to benefit our clients, but that technology is always supported by expert judgment and never replaces it; the stakes are simply too high in our business to do otherwise.

Q: AI is certainly an increasingly litigated area. What other topics are seeing increased litigation?

A: Crypto-related disputes and enforcement remain a growing area. In 2025, there were 14 cases with crypto-related claims, 75% more than in 2024. In addition, healthcare-related filings always account for a significant portion of securities litigation filings, and this continued in 2025, with healthcare-related filings accounting for more new filings than any other sector. Each of these trends is likely to continue in 2026.

Conclusion on the Securities Litigation Landscape

Although the SEC has shifted from its regulation by enforcement era, it is evident that private litigation and state attorneys general will fill at least some of the enforcement void. In addition, the potential for public companies to enforce arbitration provisions could have a transformative effect on securities litigation as we know it; however, at this time, it is not clear that a significant number of companies have or will adopt such provisions. Undoubtedly, this year will be a year of change in the securities litigation space.

More Articles:

• Letters of Intent in Mergers & Acquisitions
• Mergers & Acquisitions: 32 Vital Issues for M&A Sellers
• How CEOs and Management Teams Can Be Rewarded and Protected in an M&A Transaction

Copyright © by Richard D. Harroch. All Rights Reserved.

When you embark on a transaction to sell your business, you’ll find that the world of mergers and acquisitions (M&A) demands preparation, precision, and purpose. Successfully navigating an M&A deal for a private company forces you to understand both business and legal dimensions and to engage the right advisors, set the right timetable, and anticipate the key pitfalls. Below are 32 critical issues to consider for sellers to maximize value and minimize risk in a private-company M&A deal.

1. Time

In private-company M&A transactions, time is often the enemy of the seller. As the process drags on, prices and terms typically deteriorate, and new issues—unforeseen liabilities, market shifts, regulatory surprises—may emerge. Speed matters. Set a driving timetable and maintain momentum. Let your lawyers know that they need to turn around drafts of documents on an expedited basis. Make sure the key decision-makers on each side are available to quickly resolve key issues.

2. Competitive Process

Running a competitive auction or soliciting multiple potential buyers is one of the best ways to optimize sale value and deal terms. It gives a seller leverage, benchmarks of value, and the ability to fend off low‐ball or unfair offers.

3. Due Diligence Preparation

Sellers have to understand that they will be subject to an extensive due diligence investigation, and they must be prepared in advance for all that entails. The buyer will want to see detailed financial statements, copies of all material contracts, information on key intellectual property, employee and benefit arrangements, and much more.

Normally, the seller needs to have all of that information in an online data room, which can be quite time-consuming to get correct and complete. Sophisticated bidders will tell the selling company that preparing a comprehensive and well-organized online data room is important.

The company will typically respond that it is organized and on top of it—but the selling company often doesn’t understand the enormity of the undertaking involved. (See The Importance of Online Data Rooms in Mergers and Acquisitions.)

There are outside companies, such as SBS, that can significantly help with this burden.

4. Non-Disclosure Agreement (NDA)

Before sharing sensitive information, ensure prospective acquirers sign a strong non‐disclosure agreement that prohibits solicitation of employees and protects your confidential business data. This is especially important if a potential buyer is a competitor.

5. Investment Banker or Advisor

Retaining a seasoned investment banker or M&A advisor significantly improves your process. Negotiate the engagement letter carefully—fees, tail provisions, indemnification and negation of conflicts should be crystal clear.

6. Judgment

Good judgment is essential when negotiating an M&A deal. You must know what matters—and what doesn’t—and be ready to make quick decisions. Recognize when to trade lesser points in order to protect the big ones: value, structure, and risk allocation.

7. Exclusivity

Buyers often push for exclusivity early to avoid competition. From a seller’s standpoint, you should delay granting exclusivity until the buyer has committed to key terms (e.g., via a letter of intent), and negotiate short exclusivity windows (e.g., 15 to 21 days) rather than long ones (45+ days).

From the seller’s perspective, it will want the exclusivity period to terminate early if the buyer proposes a lower price or any other worse terms than detailed in the letter of intent. The seller will also want to make sure that any extension of the exclusivity period requires that the buyer affirm its price and terms and that they have completed their due diligence.

8. Letter of Intent (LOI)

Negotiate a detailed LOI that sets the stage for key deal terms—price, payment structure, escrow/holdback, indemnities, closing conditions, employee issues, and dispute‐resolution mechanisms. A strong LOI improves your leverage pre-closing. See Negotiating An Acquisition Letter of Intent.

David Lipkin, an M&A partner at McDermott Will & Schulte, advises, “Getting the Letter of Intent right is crucial to ensure a favorable outcome in an M&A deal.”

9. Price and Type of Consideration

The price and type of consideration are issues that will need to be addressed early in the process, and these go beyond agreeing on the “headline” price. Here are some of these issues:

• Whether the purchase price will be paid entirely in cash payable in full at the closing.

• If the stock of the buyer is to represent part or all of the consideration, the terms of the stock (common or preferred), liquidation preferences, dividend rights, redemption rights, voting and Board rights, restrictions on transferability (if any), and registration rights.

• If a promissory note is to be part of the consideration, what the interest and principal payments will be, whether the note will be secured or unsecured, whether the note will be guaranteed by a third party, what the key events of default will be, and the extent to which the seller has the right to accelerate payment of the note upon a breach by the buyer.

• Whether the price will be calculated on a “debt-free and cash-free” basis at the closing of the deal (enterprise value) or whether the buyer will assume or take subject to the seller’s indebtedness and be entitled to the seller’s cash (equity value).

• Whether there will be a working capital-based adjustment to the purchase price, and, if so, how working capital will be calculated. This is ultimately just an adjustment up or down to the purchase price. The buyer may argue that it should get the business with a “normalized” level of working capital. The seller will argue that if there is a working capital adjustment clause, the target working capital should be low or zero. This working capital adjustment mechanism, if not properly drafted or if the target amounts are improperly calculated, could result in a significant adjustment in the final purchase price to the detriment and surprise of the adversely affected party.

• If part of the consideration is comprised of a contingent earnout arrangement, how the earnout will work, the milestones to be met (such as gross revenues or EBITDA and over what period of time), what payments are to be made if milestones are met, what protections will be offered to the seller to enhance the likelihood of the earnout being paid (such as acceleration of payment of the earnout if the business is sold again by the buyer), information and inspection rights, and more. Earnouts are complex to negotiate and tend to be the source of frequent post-closing disputes and sometimes litigation. Precision in drafting these provisions and agreement on suitable dispute resolution processes are essential.

10. Lawyers

Your ordinary outside counsel may not be sufficient for a complex M&A transaction. Engage dedicated M&A counsel with experience in private company deals—someone who can handle the urgency, negotiation, documentation, and closing efficiently. You want someone who has done hundreds of M&A deals.

11. Strategic Partners

Strategic acquirers (those already operating in your industry) may offer benefits—synergies, higher valuations—but you must understand how your business fits into their strategic plan. Be cautious about rights of first refusal or preferential treatment granted in earlier financing rounds.

12. Disclosure Schedule

Preparing the disclosure schedule (the list of contracts, intellectual‐property assets, litigation, employment matters, etc.) is time‐consuming and typically requires many drafts — you should begin early. A well-prepared schedule reduces post-closing indemnity claims and uncertainties.

13. Fiduciary Duty

Board members of a seller company must understand their fiduciary duties, manage conflicts of interest, and document thoughtful decisioning. Ignoring governance issues can harm both value and deal certainty.

14. Shareholders

Identify shareholder approval requirements early. Are dissenting shareholders or appraisal‐rights issues likely? Will all classes of stock vote? Delays or objections at the shareholder level can sink a deal after terms have been agreed.

15. M&A Committee

Establishing an M&A committee of the board can improve agility and decision‐making. A nimble committee ensures issues are addressed quickly, reducing drag on the process.

16. Employee and Management Issues

Employee retention, incentives, and management continuity matter to both buyer and seller. Ensure key personnel are incentivized and consider tax impacts (e.g., Section 280G “golden parachute” issues). Consider how unvested options will be treated.

Buyers will assess culture fit and may want to implement retention programs.

Make sure the CEO and management team are appropriately rewarded and protected. See How CEOs and Management Teams Can be Rewarded and Protected in an M&A Transaction.

17. Financial Projections

Buyers scrutinize your financial projections, assumptions and growth metrics. You, as a seller, must understand and defend your numbers—and demonstrate that management continues to run the business well during the M&A process.

18. Intellectual Property (IP)

In an era of digital disruption, IP diligence is intensive. Patents, trademarks, copyrights, domain names, open‐source software use, data privacy and cybersecurity issues must all be addressed proactively.

19. Incomplete Records

Missing corporate minutes, missing amendments to contracts, incomplete option agreements, and disorganized documentation can slow or kill a transaction. Address these issues early.

20. Consents

Check what third‐party consents are required (landlords, licensors, major customers) and aim to eliminate or minimize problematic consent requirements. It's a frequent source of delay or renegotiation.

21. Disclosure Timing

Striking the right balance in disclosure is important: give the buyer enough information early to avoid surprises, but avoid over‐sharing early such that you lose leverage or risk competitive information exposure.

22. Definitive M&A Agreement

The definitive acquisition agreement is hugely important to both the seller and the buyer. There are many issues that need to be negotiated, and sophisticated M&A counsel is essential for the seller.

Some of the more important issues include:

• Will there be an escrow or holdback of the purchase price or will the buyer solely rely on representations and warranties insurance, and if there is an escrow, will the escrow serve as the sole remedy for a breach of the acquisition agreement?

• What are the scope of the seller’s representations and warranties and how many can be qualified by “knowledge” and “materiality” caveats?

• What are the covenants of the seller and any shareholders prior to closing and after the closing? Will there be any problematic non-compete covenants?

• What are the key conditions to closing the deal?

• How are various risks allocated, such as litigation, intellectual property issues, unknown liabilities, etc?

• How will employees be treated?

• What are the indemnification obligations of the parties?

• How can the M&A agreement be terminated before a closing and what are the financial consequences?

• What regulatory requirements (such as antitrust approvals) must be satisfied before closing and what issues will these raise?

• How are disputes to be resolved (e.g., by arbitration)?

Richard Smith, an M&A expert at Orrick, Herrington & Sutcliffe says, “The importance of a well-drafted M&A agreement cannot be understated to ensure a successful and expeditious deal.”

23. The CEO’s Role

The CEO’s role in an M&A process is hugely important. The CEO has to sell the vision for the business and clearly articulate why the company is such an attractive and growing business with sophisticated and differentiated technology, products, or services.

The CEO must have an understanding of the fundamental legal and business issues that will arise and be able to make many judgment calls on those issues.

The CEO also needs to keep the Board, the M&A Committee, and key investors informed at each key stage of the process.

The CEO is often put in a difficult position—to negotiate tough on key terms of the deal, knowing that he or she is negotiating with a future employer and not wanting to be perceived as difficult; this problem is exacerbated if the buyer is a private equity investor offering the CEO and other members of management a piece of the post-closing equity.

That is why it may be better for an advisor or the M&A Committee of the Board to take the lead in negotiating the deal terms/acquisition agreement, which then permits the CEO to act as a facilitator to get the deal done.

24. Shareholder Representative

Post‐closing responsibilities often fall to a shareholder representative or third-party administrator (such as Fortis)—someone who handles escrow administration, working‐capital adjustments, earnout monitoring, and indemnification mechanics.

25. Deviations from Projections During the M&A Process

Since an acquisition process can take a significant period of time to complete. One issue that can come up is the variability of the financial performance of the business while the M&A deal is pending.

If the seller misses its projected financial numbers during the process, a buyer can see this as a red flag and require a reduced purchase price or may even terminate the negotiations.

Therefore, it is imperative that the management team keeps its eye on the ball in running the business (even though they will be distracted by the M&A process), and that the projections presented to the buyer for the anticipated diligence and negotiating period be easily obtainable.

26. Cultural Integration Planning from Day One

Successful M&A isn’t just about deal documents—it’s about people and culture. Even during diligence, consider how management teams, employee morale, and organizational culture will merge post-closing. Early integration planning reduces risk of “implementation gap” and protects value.

27. Regulatory & Antitrust Early Screening

Don’t assume your deal is immune from regulatory or antitrust review just because you are a private company. Early assessment of competition, foreign investment (CFIUS in the U.S.), sector‐specific regulation, and cross-border risks helps avoid costly surprises after signing.

28. Cybersecurity & Data Privacy Risk Management

With cyber threats on the rise, buyers expect thorough cybersecurity and data privacy controls. A major breach or insecure data architecture revealed late in the process can scuttle a deal or trigger post-closing liabilities. Ensure your policies, incident history, and remediation plans are ready.

29. Post‐Closing Value Preservation Mindset

The deal typically doesn’t end at closing. Sellers should understand earn‐out triggers, covenant compliance, holdbacks, and post‐closing obligations. Maintain oversight (or negotiate retention of a post-closing role) to ensure smooth transition and protect earned value.

30. Leverage Artificial Intelligence (AI) in the M&A Process

AI is transforming M&A. AI tools can:

• Analyze and summarize massive diligence documents faster

• Model valuations and forecast synergies

• Detect contractual inconsistencies or red-flag clauses

• Streamline post-merger integration with data-driven insights

Sellers who embrace AI analytics, deal-readiness dashboards, and machine-learning-driven risk assessments gain a competitive advantage in speed, precision, and transparency. In modern M&A, AI isn’t replacing advisors—it’s amplifying them.

31. The Importance of Sell Side Quality of Earnings Report

Many buyers, especially if third-party lending is involved, will engage a reputable accounting firm to assess the seller’s underwriteable EBITDA. Nick Baughan, Managing Director of the investment banking firm MarksBaughan, advises that a seller should consider hiring its own accounting firm to prepare its Quality of Earnings Report in advance. A Quality of Earnings Report is an analysis that assesses a company's historical and current financial performance to determine the sustainability and reliability of its earnings.

There are two reasons for the seller to prepare its own report in advance: The seller can position the best and most supportable view of EBITDA, and the seller is then equipped to expeditiously engage with the buyer's accounting firm. A huge time sink and value destroyer in deals is an under-prepared founder or CFO trying to respond to a team from the buyer’s accounting firm whose highly-experienced partner is looking to reduce EBITDA for valuation purposes.

32. The Increasing Importance of Reps and Warranties Insurance

Many deals now have M&A reps and warranty insurance (RWI). Some buyers will still try to push for a holdback or escrow to cover indemnification obligations of the seller, but the RWI market has evolved to the point where a deal over $20 million in enterprise value is typically better off with RWI, reducing the risk to the seller. The cost of the policy is small and can either be split or entirely borne by the buyer. The negotiation of the representations and warranties in the acquisition agreement typically happens more quickly and that time savings is more than made up by the time lost getting the RWI policy implemented.

Final Thoughts on Private Company M&A Deals

In today’s market, selling your private company successfully in a mergers and acquisitions transaction hinges on preparation, transparency, strategic process and risk management. From building momentum and creating competitive tension to organizing your data room and preparing for integration, each of these 32 factors plays its part.

Engage seasoned advisors and technology solutions, adopt a disciplined timeline, maintain business performance, understand the transaction mechanics, and anticipate post-closing realities. With those principles in place, you’ll be in the strongest position to maximize value, minimize surprises, and execute a smooth transition.

Related Articles:

• A Comprehensive Guide to Due Diligence Issues in Mergers and Acquisitions
• Data Privacy and Cybersecurity Issues in Mergers and Acquisitions: A Due Diligence Checklist to Assess Risk
• What You Need to Know About Mergers & Acquisitions: Key Considerations When Selling Your Company

Copyright © Richard D. Harroch. All Rights Reserved.