Friday, September 12, 2014
Vice Chancellor Laster has posted a 3 page comment titled Evidence Based Corporate Law on SSRN (also appearing in the Del J Corp Law). Here's the abstract:
Abstract: John Maynard Keynes is said to have observed, "When the facts change, I change my mind. What do you do, sir?" In Delaware's Choice, Professor Subramanian argues that the facts underlying the constitutionality of Section 203 have changed. Assuming his facts are correct, and the Professor says that no one has challenged his account to date, then they have implications for more than Section 203. They potentially extend to Delaware's jurisprudence regarding a board's ability to maintain a stockholder rights plan, which becomes a preclusive defense if a bidder cannot wage a proxy contest for control of the target board with a realistic possibility of success. Professor Subramanian's facts may call for rethinking not only the constitutionality of Section 203, but also the extent of a board's ability to maintain a rights plan.
I know a lot of people who would be very interested in the prospect of the Delaware Supreme Court actually revisiting the question of the viability of the poison pill under Unocal.