Prevent Merger Benefits From Becoming Disabling Conflicts
Law360, New York (September 22, 2016, 1:56 PM EDT) -- As the Delaware Supreme Court narrows the avenues for post-closing challenges to mergers, we expect that plaintiffs lawyers will increasingly seek to base their merger suits on specific allegations of conflicts that may have tainted the oversight of processes to sell companies in hopes of supporting claims for breaches of the duty of loyalty and the applicability of the enhanced scrutiny of the entire fairness doctrine. Given that virtually every merger includes some special merger benefits for directors that may be susceptible to an attempt at such a claim, it is timely that the Delaware Court of Chancery issued a decision over the summer of 2016 that provides useful guidance on how to evaluate the most common of special merger benefits to insiders: protection against exposure to premerger claims....
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