Saying Yes: Reviewing Board Decisions to Sell or Merge the Corporation

72 Pages Posted: 19 Apr 2016  

Franklin A. Gevurtz

University of the Pacific - McGeorge School of Law

Date Written: 2015

Abstract

This article responds to the explosion in litigation challenging board decisions to sell or merge the corporation by undertaking a comprehensive examination of the standards courts use and should use for reviewing such decisions. This examination is unique both in its breath and in its return to first principals by framing the analysis around the three goals for judicial review of board decisions generally. It shows current Delaware law on the topic often is a muddle—which results from the failure to match standards with these goals. It explores when, in light of these goals, review of decisions to sell or merge calls for different standards than used to review other decisions of corporate boards. This, in turn, leads to a proposal narrowing and refining the circumstances in which courts should review decisions to sell or merge under different standards than applied to other board decisions, as well as guidelines as to what such standards should entail.

Keywords: corporation, sell calls, merge calls

Suggested Citation

Gevurtz, Franklin A., Saying Yes: Reviewing Board Decisions to Sell or Merge the Corporation (2015). Florida State University Law Review, Vol. 44, Forthcoming; Pacific McGeorge School of Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2765815

Franklin A. Gevurtz (Contact Author)

University of the Pacific - McGeorge School of Law ( email )

3200 Fifth Avenue
Sacramento, CA 95817
United States
916-739-7111 (Phone)
916-739-7105 (Fax)

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