Delaware Court Applies Business Judgment Review to Going Private Merger

30 May 2013
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Key takeaways:

  • This case is the first in which the Delaware Court of Chancery has squarely held that business judgment review, rather than the more stringent entire fairness review, is applicable to a going private merger with a controlling stockholder, if adequate procedural protections are in place.
  • The court holds that business judgment review is applicable if such a transaction is conditioned from its inception on approval by (1) a special committee of independent directors and (2) a majority of the unaffiliated shares.
  • The Court of Chancery acknowledges that “rational minds can differ about this question, “ and that it is unclear whether the Delaware Supreme Court will endorse this test if the decision is appealed.