M & A Law Prof Blog

Editor: Brian JM Quinn
Boston College Law School

Thursday, July 8, 2010

Pills in Court Today

It's been a busy day in Delaware - thanks to the wonders of the Internet and Courtroom View Network, I've been watching  the Versata v Selectica appeal before the Delaware Supreme Court (yesterday) and the Yucaipa v Barnes & Noble trial today.  The Yucaipa trial is going on in Vice Chancellor Strine's courtroom right now.  It's a four day bench trial.  

Investor Ron Burkle has already testified that B&N's pill is "draconian" and confusing.   There's now a lot of testimony by board member Patricia HIggins along the lines of the "I don't recall" and "I'm not personally aware" nature right now.  I'll be summarizing the proceedings later tonight or tomorrow.  


-Update I:  In a brief recess right now.  Higgins has been testifying in great detail about the process by which the board went about adopting the shareholder rights plan - and in doing so, she's hitting all the Unocal key words - informed, reasonable, threats, etc.

  -Update II

   Burkle lawyer: I object.  

   VC Strine: To what?

   Lawyer:  That which has not yet been uttered, but may be uttered.

   VCS (to witness): Don't utter that, otherwise it will be smote.  And bad things can happen when we start striking testimony...

-Update III: Greg Taxin now on the stand testifying as an expert (ex. 764 for those of you with Bloomberg Law).  He's testifying on proxy contests, the election of directors, and rights plans.   Testifying that there are two provisions that impact one's ability to run a proxy contest:  1) the 20% trigger, while insiders own more than 30%; and 2) the definition of beneficial ownership.  Nice charts - illustrating how often dissident proxy contests can win.  He's relying on data from SharkRepellent.  Dissidents seem to have won 32% of proxy contests over the past decade.

Here's the chart:



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