Business Judgment Rule

News & Analysis as of

Consider Adding Separate Annual Sublimit on Director Equity Awards

In response to the Delaware Chancery Court’s 2012 and 2015 decisions in Seinfeld v. Slager and Calma v. Templeton and Facebook’s 2016 settlement of Espinoza v. Zuckerberg, public companies that are adopting or amending...more

Are A Breach Of Fiduciary Duty And A Breach Of Governing Documents “Non Bis In Idem”?

Last week, I discussed the Court of Appeal’s consideration of whether the business judgment rule protects a director from claims based on breach of the corporation’s governing documents. See Does The Business Judgment Rule...more

Does The Business Judgment Rule Protect Directors Who Violate Governing Documents?

Under the business judgment rule, a director will not be liable for a mistake in business judgment provided that certain conditions are met. In the case of a California nonprofit mutual benefit corporation, a director who...more

Directors Owe Fiduciary Duties to Creditors of Insolvent Companies

Creditors of a corporation in bankruptcy recently received some good news from a bankruptcy court in California. In re ATWR Liquidation, Inc. clarified that corporate officers and directors owe creditors the same fiduciary...more

Trouble Down the Pipeline? What Sabine Oil & Gas Corp. May Mean For The Midstream Service Sector

Recently, the Bankruptcy Court for the Southern District of New York issued an opinion in In re Sabine Oil & Gas Corp. that permitted the debtor, Sabine Oil & Gas Corporation ("Sabine") to reject certain gathering and...more

Who Decides Whether A Shareholder Has Complied With An Advance Notice Bylaw?

UCLA Professor Stephen Bainbridge asked the following question concerning advance notice bylaw provisions in “The Professor is Stumped: Today’s Corporate Law Question“...more

"Delaware Supreme Court Enhances Protections for Controlling Stockholder Buyouts"

In November 2015, the Delaware Supreme Court bolstered the protection afforded to majority or controlling stockholders seeking to buy out the minority, provided that the transaction is structured in accordance with the...more

"Court of Chancery Addresses Fundamental Issues of Derivative Litigation"

The Delaware Court of Chancery recently issued a trio of notable opinions involving stockholder derivative actions. The opinions addressed fundamental issues of law such as whether particular kinds of stockholder claims are...more

New York High Court Adopts Delaware Rule in Go-Private Suits

New York’s highest court earlier this month adopted a more lenient standard for reviewing certain types of corporate transactions between companies and controlling shareholders, similar to that adopted two years ago by...more

Cybersecurity, Boards and Cyber-Board "Experts": Caution Should Rule

A continuing frequent question from public companies is how a board should be constituted to oversee cybersecurity. Many public companies foist this additional burden on the audit committee. Those large enough to have a...more

New York High Court Adopts Business Judgment Rule for Going-Private Transactions When Certain Minority Shareholder Protections Are...

Background of Kenneth Cole Productions Shareholder Litigation - The case involved Kenneth Cole Productions (KCP), a public New York corporation well-known as the designer and marketer of shoes, apparel and accessories....more

Bankruptcy Court Opinion Clarifies California Law on Duties of Directors & Officers Upon Insolvency

It is not unusual in the lifecycle of a start-up for the company to hit road blocks and have cash flow issues. During these times, the board and its members will ask the company’s professionals what their fiduciary duties are...more

Top Courts in Delaware and New York Affirm Business Judgment Rule Protection Where Procedural Safeguards are Followed

In recent decisions, both the Delaware Supreme Court and the New York Court of Appeals affirmed defendant-friendly lower court rulings, holding that, if appropriate procedural safeguards are employed in M&A transactions,...more

Delaware Supreme Court Reaffirms KKR, But Sounds Cautionary Note to Gatekeepers

On May 6, 2016, the Delaware Supreme Court affirmed the Delaware Chancery Court's ruling that Zale Corporation's sale to Signet Jewelers withstood scrutiny under the business judgment rule because the transaction was approved...more

New York High Court Holds Business Judgment Rule May Apply to Going-Private Mergers

On May 5, 2016, the New York Court of Appeals in Matter of Kenneth Cole Productions, Inc., Shareholder Litigation, 2016 WL 2350133 (N.Y. May 5, 2016) (Matter of Kenneth Cole), adopted the approach of the Supreme Court of...more

New York Court of Appeals Adopts Delaware Law, Affirming Business Judgment Deference for Controlling Stockholder Transactions...

On May 5, 2016, New York’s highest court confirmed that, under New York law, business judgment deference—rather than more searching “entire fairness” review—applies to controlling stockholder transactions that are approved by...more

New York High Court Adopts Delaware's Deferential Business Judgment Review for Controlling Stockholder Buyouts

In re Kenneth Cole Productions, Inc. Shareholder Litigation - We previously reported on the Delaware Supreme Court’s landmark decision in Kahn v. M&F Worldwide Corp. (MFW) applying the deferential, defendant-friendly...more

New York Adopts Delaware Standard for Going-Private Transactions

On May 5, 2016, the New York Court of Appeals affirmed the dismissal of a shareholder class action and formally adopted the standard of review for going-private transactions articulated by the Delaware Supreme Court in Kahn...more

New York’s Highest Court Adopts Delaware Business Judgment Standard for Controlling Stockholder Buyouts

On May 5, 2016, in In the matter of Kenneth Cole Productions, Inc., Shareholder Litigation (N.Y. 2016), the New York Court of Appeals adopted the standard of review established by the Delaware Supreme Court in Kahn v. M&F...more

New York Follows Delaware, Applies Business Judgment Rule to Going-Private Mergers

On May 5, 2016, the New York Court of Appeals ruled that courts should apply the business judgment rule in shareholder lawsuits challenging going-private mergers, as long as shareholders were adequately protected—a decision...more

Challenges to Going-Private Mergers Just Got Tougher in New York

In a landmark decision on May 5, 2016, the New York Court of Appeals held that challenges to going-private mergers where there is a controlling stockholder must be reviewed under the deferential business judgment rule rather...more

Recent New York Court of Appeals Decisions: Court Adopts Standard of Review for Going-Private Mergers (5/16)

On May 5, 2016, the New York Court of Appeals ruled on the standard of review applicable to a going-private merger in Matter of Kenneth Cole Prods, Inc. Shareholder Derivative Litig. In particular, the Court considered...more

N.Y. Court of Appeals Adopts Business Judgment Rule, with Conditions, for Going-Private Mergers

The New York Court of Appeals has followed Delaware in holding that the business-judgment rule applies to going-private mergers as long as certain shareholder-protective measures are met. The court’s May 5, 2016 decision in...more

Directors And Officers’ Ultimate Escape From Personal Liability

In the Ultimate Escapes bankruptcy case, the U.S. District Court for the District of Delaware recently held that the “business judgment rule” may protect fiduciaries who negotiate and enter into unconventional financing...more

Seventh Circuit Applies Strong Business Judgment Rule to Reject Assertion of Demand Futility

In a recent decision in a diversity case, the Seventh Circuit deferred to a state legislature’s “strongly pro-management version of the business judgment rule,” rejecting a derivative claim filed by shareholders in an Indiana...more

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