M & A Law Prof Blog

Editor: Brian JM Quinn
Boston College Law School

Monday, April 28, 2014

Non-traditional dissents

Traditionally, the Delaware Supreme Court is known for its unanimity. Unlike the United States Supreme Court, where the norm now seems to be  5:4 decisions, the Delaware Supreme Court tends to err on the side of 5:0.  Justice Holland remarked on this phenomenon when he introduced the now-Chief Justice Leo Strine, Jr. to the Supreme Court bench this year. Holland remarked that he expected the new chief justice will fit well with Delaware's "unanimity norm." Over the past 61 years  99% of the court's rulings have been unanimous.  Some of the well known exceptions to that norm are also the cases that tend to be decried as the court's worst - Van Gorkom and Omnicare among them.

What's interesting about Delaware and the corporate law jurisprudence is that dissents don't appear necessarily appear at the supreme court level, but bubble up from below.  The Chancery Court has always been a source of non-traditional dissent, pushing the court to evaluate and re-evaluate its previous rulings.  Last year there was some commotion when then-Chief Justice Steele politely made it known that he thought chancellors should keep their opinions to themselves and stay in their lane. Nothing really new there, just the underlying tensions between the supreme court and the chief source of dissents from the supreme court's opinion. [By "tensions" I don't mean acrimony.  I mean different points of view that lead to structural differences in world view.] 

In re MFW and the controlling shareholder jurisprudence is a good example of Delaware's non-traditional dissents in action.  The Supreme Court's opinion in Kahn v Lynch which established that squeezeout mergers would be subject to entire fairness review with the controller able to shift the burden within entire fairness was unanimous at the Supreme Court level.  At the Chancery  Court however, Kahn was subject of push-back almost from the very beginning.   For example, in Cox Communications then-Vice Chancellor Strine set out his objections to the whole Kahn line of cases.   When he had another opportunity to push the ball down the field a little more, he took it in In re MFW.  Though not a complete victory for Chancery, when the supreme court was asked to weigh in on its own unanimously adopted Kahn line of cases, it moved towards the Chancery position. 

Does the elevation of Strine to the Supreme Court mean that this long-standing tension between the Chancery and the Supreme Court will go away?  That's hard to say.  The tensions are long-standing and previous elevations of chancellors to the Supreme Court have not assuaged them (e.g. Jacobs and Berger).  My guess is that going forward, the Supreme Court will continue to exhibit its unamity norm while relying on the Chancery Court for non-traditional dissents. And that's not necessarily a bad thing.



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