Congratulations to our friends at Conglomerate and TOTM for having been flagged by Bill Savitt of Wachtell as having an important impact on Delaware corporate law. As Gordon Smith at the former noted:
According to Savitt, one reason the Delaware courts are in a better position than other courts to legislate or regulate, rather than just deciding incrementally, is that Delaware decisions are subject to extensive commentary from academic bloggers!
But Savitt apparently had no love for ProfessorBainbridge.com. So what are we? Chopped liver? Westlaw searches in the De-CS library turned up no hits for either theconglomerate.org or truthonthemarket.com. In contrast, professorbainbridge.com kicked up two cites. Consider, for example, Desimone v. Barrows, 924 A.2d 908 (Del. Ch. 2007):
By way of example, consider the concerns of some distinguished scholars about the boundaries between law and equity in this area. Those scholars posit that if directors violate the express terms of a stockholder-approved stock option plan, they have acted without authority and their actions may be set aside as invalid, because the directors did not have the authority to take those actions in the first place.FN82 Therefore, these scholars see little room for the application of fiduciary principles to judge such behavior.FN83
FN82. See, e.g., Stephen M. Bainbridge, Ryan v. Gifford: Chandler Tackles Stock Options, at ProfessorBainbridge.com, http:// www. professor bainbridge. com/ 2007/ 02 / ryan—v— gifford. html (Feb. 7, 2007).
FN83. E.g., id. (arguing that if the backdated option grants are declared invalid as being ultra vires, there is no further harm to the corporation to justify derivative litigation against the board); see also Larry E. Ribstein, Bainbridge and Chandler on Backdating, at http:// bus movie. typepad. com/ ideoblog / 2007/ 02/ bainbridge— and—. html (Feb. 8, 2007) (agreeing that backdated options can be set aside as ultra vires and noting that although a disclosure violation would still remain, fashioning a remedy for the disclosure violation would be problematic).
As Bertie Wooster once observed, after all, "I mean, while one lives for one's Art, so to speak, and cares little for the public's praise or blame and all that sort of thing, one can always do with something to paste into one's scrap-book, can one not?"
Oh well, at least we got some tweet love for the scrapbook.