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A Delaware Response To Delaware's Choice, Lawrence Hamermesh, Norman Monhait
A Delaware Response To Delaware's Choice, Lawrence Hamermesh, Norman Monhait
Lawrence A. Hamermesh
This article is an invited response to Professor Subramanian’s article “Delaware’s Choice.” The article expresses skepticism, for two primary reasons, about the need for the change to Delaware’s takeover statute that Professor Subramanian proposes. First, there is uncertainty that the constitutionality of that statute would be evaluated today under a test as demanding as the one that was applied when the statute was upheld in the late 1980s. Second, citing an earlier article by A. Gilchrist Sparks and Helen Bowers, we question whether a constitutional evaluation of the takeover statute should be limited to data on tender offers that are …
M&A Under Delaware's Public Benefit Corporation Statute: A Hypothetical Tour, Frederick Alexander, Lawrence Hamermesh, Frank Martin, Norman Monhait
M&A Under Delaware's Public Benefit Corporation Statute: A Hypothetical Tour, Frederick Alexander, Lawrence Hamermesh, Frank Martin, Norman Monhait
Lawrence A. Hamermesh
Noting the enthusiastic initial response to Delaware’s 2013 public benefit corporation statute, this Article presents a series of hypotheticals as vehicles for comment on issues that are likely to arise in the context of mergers and acquisitions of public benefit corporations. The Article first examines appraisal rights, concluding that such rights will be generally available to stockholders in public benefit corporations, and noting the potential for ambiguity in defining “fair value” where the corporation’s purposes extend to public purposes as well as private profit. Next, the Article examines whether and to what extent “Revlon” duties and limitations on deal protection …
Consent In Corporate Law, Lawrence Hamermesh
Consent In Corporate Law, Lawrence Hamermesh
Lawrence A. Hamermesh
Recent Delaware case law explores and extends what the author describes as the “doctrine of corporate consent,” under which a stockholder is deemed to consent to changes in the corporate relationship that are adopted pursuant to statutory authority (such as by directors adopting bylaws). This essay examines whether and to what extent there may be limits on the application of the doctrine of corporate consent, and whether fee-shifting bylaws exceed those limits.