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Anti-Takeover Measures in Ebay v. Craigslist
Delaware corporate jurisprudence has long recognized the utility ' and upheld the validity ' of defensive measures implemented in response to, or in anticipation of, hostile takeover threats. The overwhelming majority of the decisions in jurisprudence generally arise in the context of contests for control of publicly traded companies. Not surprisingly, attacks from the perceived raider typically assail the self-interest and self-dealing of the board of directors and management of the target, alleging that the defensive measures adopted are more intended to entrench and enrich management than they are reasonably crafted to accomplish the defensive strategy proffered as justification.
The courts have sought to create a level playing field for such disputes, emphasizing that “a corporation does not have unbridled discretion to defeat any perceived threat.” Unocal Corp. v. Mesa Petroleum Co., 493 A. 2d 946, 955 (Del. 1985). Defensive measures must be reasonable in relation to the threat posed and cannot have as their sole or primary purpose the entrenchment of management. Id. However, what happens when the majority shareholders interest is so large as to make entrenchment and self-interest an academic issue? How far can the majority shareholders of a closely held company go to repel, and further insulate their company from, the perceived threat of a predatory minority stakeholder? By what standard will the majority shareholder's conduct be measured? Will the business judgment rule apply, or will entire fairness be required in defense of the measures implemented by the majority?
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.