September 1, 2021

Delaware Law: The Bedrock M&A Cases

This Sidley blog lays out a list of 11 “bedrock” Delaware decisions that the authors suggest every M&A lawyer should be familiar with.  I love these kind of lists, whether it’s something like the BFI’s poll of the 100 best films of all time, a list of the 100 best novels of the 20th century, or a list of the best players in NFL history.

The fun thing about lists like these is arguing over what should be included or excluded. For instance, while Sidley’s list is a good one, Smith v. Van Gorkom isn’t on it, and I think it should be.  Sure, there’s a lot to dislike about a decision that most practitioners probably regard as more blunder than bedrock, but it’s had an enormous influence on the evolution of the deal process and on subsequent developments in Delaware law.  Just to give one example, if there’s no Van Gorkom, does Delaware ever enact Section 102(b)(7) and permit companies to eliminate damage liability for breaches of the duty of care?

In terms of what I might exclude, the Sidley folks included Blasius v. Atlas Industries, which is a case whose bark has usually been worse than its bite (at least outside of director elections). It’s full of lofty language about protecting voting rights, but former Chief Justice Strine did his level best to demote it to a particularized application of Unocal.  It looks like it may have been recently re-elevated by the Supreme Court, but I’m not sure it’s bedrock.

Anyway, your mileage may vary on all of this, but it’s an interesting topic and I highly recommend checking out the blog.

John Jenkins