An (early) day in court for Dow and Rohm

February 11, 2009

Lawyers for Dow Chemical Co and Rohm and Haas faced off on Wednesday over whether Wachtell, Lipton, Rosen & Katz should be disqualified as Rohm’s lawyers because the firm had once¬†represented Dow.

The arguments mostly focused on the issues of whether Dow could be considered a current client of Wachtell, whether Wachtell should have informed Dow that it had taken on Rohm and Haas as a client, and whether Dow should have objected to Wachtell representing Dow before litigation had commenced. But the arguments did stray at a few points into the merits of the case.

At one moment, Chancellor William Chandler, the judge hearing the case, asked Dow lawyer David Bernick, a partner at law firm Kirkland & Ellis, about the company’s defense in the case.

Rohm is asking for “specific performance” in the case — basically asking the judge to order Dow to close the deal. Dow has argued that specific performance is not the appropriate remedy.

On Wednesday, Chancellor Chandler said that he had heard a lot of cases where one side argues that specific performance is not appropriate.

That argument “always comes with a ‘but,’” Chandler said, implying that Dow had not yet suggested any appropriate remedy for walking away from the more than $15 billion deal.

“Something else needs to be an appropriate remedy,” Chandler said.

Bernick acknowledged that Dow could have a damages claim to contend with if it is successful in fending off the current lawsuit.

(Live streaming video was provided by CVN at

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