LAWRENCE HAMERMESH, Institute for Law & Economics, University of Pennsylvania Carey Law School
Email: lhamerme@law.upenn.edu
JACK B. JACOBS, Young Conaway Stargatt & Taylor, LLP
Email: jjacobs@ycst.com
LEO STRINE, University of Pennsylvania Carey Law School, Wachtell, Lipton, Rosen & Katz, Columbia Law School - Ira M. Millstein Center for Global Markets and Corporate Ownership
Email: lestrine@wlrk.com

In a 2001 article (Function Over Form: A Reassessment of Standards of Review in Delaware Corporation Law) two of us, with important input from the other, argued that in addressing issues like hostile takeovers, assertive institutional investors, leveraged buyouts, and contested ballot questions, the Delaware courts had done exemplary work but on occasion crafted standards of review that unduly encouraged litigation and did not appropriately credit intra-corporate procedures designed to ensure fairness. Function Over Form suggested ways to make those standards more predictable, encourage procedures that better protected stockholders, and discourage meritless litigation, by restoring business judgment rule protection for transactions approved by independent directors, the disinterested stockholders, or both.

This article examines how Delaware law responded to the prior article’s recommendations, concluding that the Delaware judiciary has addressed most of them constructively, thereby creating incentives to use procedures that promote the fair treatment of stockholders and discourage meritless litigation. The continued excellence and diligence of the Delaware judiciary is one of Delaware corporate law’s core strengths.

But some recent cases have articulated standards of review that involve greater than optimal litigation intensity and less than ideal respect for decision-making in which independent directors and disinterested stockholders have potent say. Those standards also impair the integrity of Delaware’s approach to demand excusal in derivative cases and the identification of controlling stockholders. We also propose eliminating concepts like substantive coercion that do not provide a legitimate basis for resolving cases. Finally, we urge action to correct new problems such as the unfair targeting of corporate officers for negligence claims in representative actions and the frustrating state of practice under Delaware’s books and records statute.

KARSTEN ENGSIG SØRENSEN, Aarhus University – Aarhus BSS, Department of Law
Email: Kes@law.au.dk

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