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How Del. High Court Sees Discussion Vs. Negotiation In M&A

Law360 (May 6, 2019, 3:58 PM EDT) -- In the Delaware Court of Chancery’s July 2018 decision in Olenik v. Lodzinski, the court found that the controller-led merger being challenged was compliant with Kahn v. M&F Worldwide Corp., or "MFW."[1] The Court of Chancery therefore applied business judgment review and dismissed the case at the pleading stage.

On appeal, the Delaware Supreme Court has now found (Apr. 5, 2019) that MFW's ab initio requirement was not satisfied and therefore ruled that MFW was not applicable. The Supreme Court has remanded the case to the Court of Chancery for review under the more stringent “entire fairness” standard (which applies to...

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