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En Banc Category

Chancery Court Refuses to Alter Contractual Allocation of Risk Between Sophisticated Parties

Dec. 30, 2020—Robert S. Reder & Marissa L. Barbalato | 73 Vand. L. Rev. En Banc 275 (2020) |  In her opinion, Vice Chancellor Zurn instructed that Julius v. Accurus “teaches an important lesson about the benefits of allocating risk among contracting parties and detriments of imprecise drafting.” In essence, the Buyers were in search of a...

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Despite Lack of Control Stockholder, Chancery Court Applies M&F’s “Ab Initio” Requirement in Determining Whether Independent Committee Recommendation Cleansed Transaction Approved by Conflicted Board

Dec. 30, 2020—Robert S. Reder & Colton Tyler Haney | 73 Vand. L. Rev. En Banc 265 (2020) | Salladay discusses the options available to corporate dealmakers and their legal counsel to obtain business judgment review—and ultimately pleading-stage dismissal—of conflicted transactions. If a controlling stockholder is to receive benefits from the transaction not shared with the other...

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Chancery Court Enforces Contractual Termination Provision—but Questions Fairness of Related Termination Fee

Dec. 30, 2020—Robert S. Reder & Kenton B. Wilson | 73 Vand. L. Rev. En Banc 257 (2020) | In Vintage Rodeo Parent, LLC v. Rent-A-Center, Inc., No. 2018-0927-SG, 2019 Del. Ch. LEXIS 87 (Del. Ch. Mar. 14, 2019) (“Vintage Rodeo”), the Delaware Court of Chancery (“Chancery Court”) rejected claims of invalidity and unfairness in upholding a...

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Chancery Court Grants Pleading Stage Dismissal of Revlon Claims Against Target Company Directors Despite Looming Proxy Contest

Dec. 17, 2020—Robert S. Reder & Victoria D. Selover | 73 Vand. L. Rev. En Banc 249 (2020) | “In Rudd, Vice Chancellor Zurn rejected Plaintiff’s attempted reliance on Tangoe for the proposition that threat of a proxy contest, in and of itself, disabled otherwise independent and disinterested target company directors from making an unconflicted decision to...

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Aruba Appraisal: Delaware Supreme Court Rejects Chancery Court’s Exclusive Reliance on Trading Price in Determining “Fair Value” Under DGCL § 262

Oct. 21, 2020—Robert S. Reder & Martin Shepherd | 73 Vand. L. Rev. En Banc 239 (2020) | “Consistent with DFC and Dell, Aruba II reaffirmed the important, if not dispositive, role that deal price usually plays in determining ‘fair value’ for purposes of DGCL § 262. One cannot ignore the fact that the Chancery Court retains broad...

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Chancery Court––for the First Time–– Releases Buyer from Obligation to Close due to Target MAE

Oct. 21, 2020—Robert S. Reder & Katie Clemmons | 73 Vand. L. Rev. En Banc 227 (2020) | “Under the standard adopted by the Delaware Court of Chancery (‘Chancery Court’) in In re IBP Inc. Shareholders Litig., 789 A.2d 14 (Del. Ch. 2001) (‘IBP’), a buyer seeking release from its obligations under an acquisition agreement due to...

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Negotiating Against Yourself: Flawed Negotiating Process Leads Chancery Court to Deny M&F-Premised Motion to Dismiss

Sep. 22, 2020—Robert S. Reder & Matthew K. Vallade | 73 Vand. L. Rev. En Banc 213 (2020) | “In Alon USA, a target company minority stockholder challenged a transaction where a stockholder owning ‘48% [of the] equity interest’ in the target purchased the remainder of the outstanding stock via a merger transaction. In sorting out this...

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Our Trade Law System

Jun. 5, 2020—Kathleen Claussen | 73 Vand. L. Rev. En Banc 195 (2020) | In Misaligned Lawmaking, Timothy Meyer identifies a major problem in U.S. trade law design. Professor Meyer argues that there is a misalignment between trade liberalization laws—laws that enable the executive branch to lower trade barriers with other countries—and trade adjustment assistance laws—laws that...

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Irrational Inequality: The Role of Fact-Based Review in Equality Change

May. 27, 2020—Katie Eyer | 73 Vand. L. Rev. En Banc 177 (2020) | In Broken Records: Reconceptualizing Rational Basis Review to Address “Alternative Facts” in the Legislative Process, Joseph Landau offers an important exposition of how legislative records “predicated on a false factual foundation” are, and ought to be, treated by constitutional equality law. As Landau...

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Taking an Interest in Inmate Trust Accounts

May. 27, 2020—Charlotte Elam | 73 Vand. L. Rev. En Banc 143 (2020) | The Fifth Amendment’s Takings Clause is generally unconcerned about the size of property taken. But is it more concerned about the person from whom the property is taken? When that person is a prisoner, courts have found the relevance of the Takings Clause...

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Making Litigating Citizenship More Fair

May. 14, 2020—Ming H. Chen | 73 Vand. L. Rev. En Banc 133 (2020) | In Litigating Citizenship, Cassandra Burke Robertson and Irina D. Manta chart the contours of expanding immigration enforcement in the Trump administration: from criminal aliens and illegal aliens, to legal immigrants, to naturalized citizens. In their own words, their interest is “How do...

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Delaware Supreme Court Approves Federal Forum Selection Provision for Securities Act Claims

May. 7, 2020—Robert S. Reder | 73 Vand. L. Rev. En Banc 123 (2020) | “In 2018, the Delaware Court of Chancery (“Chancery Court”) confronted the question of whether a corporation could validly adopt an exclusive forum selection provision requiring that claims under the Securities Act of 1933 (“Securities Act”) be brought in federal rather than state...

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Chancery Court Dismisses Breach of Fiduciary Duty Claims Against Target Company Directors Despite Unavailability of Corwin Defense

May. 4, 2020—Robert S. Reder & Lorin Hom | 73 Vand. L. Rev. En Banc 111 (2020) | “In Morrison III, Vice Chancellor Glasscock again dismissed the claims of fiduciary breach brought against all but one of the named target company directors, citing failure by plaintiff to adequately plead facts satisfying the high bar imposed by an...

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Chancery Court Denies Rescission of Merger Agreement Where “Indispensable” Company Stockholders Not Named as Parties to Litigation

Apr. 21, 2020—Robert S. Reder & Jacob R. Haskins | 73 Vand. L. Rev. En Banc 105 (2020) | It is customary, when a private corporation with numerous stockholders is sold, for a representative to be appointed to act on behalf of the stockholders if a dispute arises post-closing with respect to a purchase price adjustment or...

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Norcraft Appraisal: Chancery Court Gives No Weight to Deal Price Negotiated in a Conflicted CEO-Led Transaction with a Flawed Sales Process

Apr. 21, 2020—Robert S. Reder & Szymon S. Barnas | 73 Vand. L. Rev. En Banc. 93 (2020) | “[I]n Blueblade Capital Opportunities LLC v. Norcraft Companies, Inc., No. CV 11184-VCS, 2018 WL 3602940 (Del. Ch. July 27, 2018) (hereinafter “Norcraft Appraisal Action”), the Chancery Court determined that neither the deal price produced by the sales process...

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In Defense of Excellence

Jan. 29, 2020—Jasper L. Tran | 73 Vand. L. Rev. En Banc 71 | Reviewed: Anthony T. Kronman, THE ASSAULT ON AMERICAN EXCELLENCE, Free Press 2019. Pp. 272. $27.00 Hardcover. “Up until recently, excellence had been an educational ideal. At the founding of the Catholic University of Ireland in 1852, John Henry Newman envisioned a university as a...

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