Lamb on Lyon(dell)

DealScape has a brief article about Chancellor Lamb's remarks on Lyondell Chemical v. Ryan (2009 WL 790477) at the Tulane Corporate Law Conference.

The Best Lack all Conviction ...

The Harvard Corporate Governance blog has posted Francis G. X. Pileggi's rebuttal (complete with sneaky digs, "My cursory review ... is not as scholarly ... I do not have the time (thankfully, due to my busy practice)" to Race to the Bottom's 5 Worst Delaware Cases of 2008.

A Review of Reviews

A last fond look back at 2008, from some of my favorite securities-law blogs:

From NYT DealBook:
The Deal Professor's Year-in-review.
2008 in deals.

From Reuters DealZone:
New Year's Resolutions for private equity.

From Race to the Bottom (I love this):
The Five Worst Shareholder Decisions of 2008
Introduction
5. CA, Inc. v AFSMCE, 953 A2d 227
4. McPadden v. Sidhu, 2008 WL 4017052
3. In re Trankaryotic Therapies, Inc., 954 A2d 346
2. Portnoy v Cryo-Cell Int'l, Inc., 940 A2d 43
1. Wood v Baum, 953 A2d 136

Merrill / B of A: No Stay in Delaware

The Delaware Court of Chancery won't stay proceedings in County of York v. Merrill Lynch & Co. in favor of proceedings in the Southern District of New York. The Court found that a year-old SDNY suit against Merrill alleging poor risk management practices was not substantially similar to the County of York's action seeking to block Merrill's merger with B of A. (2008 WL 4824053)

MAC Clause Survey from Nixon Peabody

Nixon Peabody has just released its annual survey of the law regarding material adverse change clauses. Deal Professor has a nice overview of the findings.

If it wasn't for bad faith ...

In 1985, the Supreme Court of Delaware held that the business judgment rule doesn't protect directors who make, "an unintelligent or unadvised judgment." (Smith v. Van Gorkam, 488 A.2d 858) In the words of Chancellor Strine, "After Van Gorkom met an unenthusiastic reception, the General Assembly adopted § 102(b)(7)." 102(b)(7) allows a company to insert into its certificate of incorporation a provision, "limiting personal liability of a director ... for monetary damages for breach of fiduciary duty ..."

In three recent cases the Chancery Court has given shape to the jurisprudence of section 102(b)(7).

The cases are:

McPadden v. Sidhu, 2008 WL 4017052
Ryan v. Lyondell Chemical, 2008 WL 4174038
In Re Lear Corp. Shareholder Litigation, 2008 WL 4053221

For detail about the holdings look at this post on the Delaware Corporate and Commercial Litigation Blog.

To help you find precedents, here's the exculpatory provision from Lear Corp.'s certificate of incorporation:

(e) No director shall be personally liable to the Corporation
or any of its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the
director's duty of loyally to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174
of the Delaware General Corporation Law or (iv) for any transaction
from which the director derived an improper personal benefit.