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COVID19 and mergers cratering left and right

Bloomberg reports:

The number of lawsuits asking courts to keep mergers on track is likely to grow as the coronavirus scrambles business deals worldwide and acquirers balk at the uncertainty, experts say. ...

The prospects of merger plaintiffs like Bed Bath will likely turn on provisions that assign risk, particularly “material adverse change” (MAC) and “material adverse event” (MAE) clauses, Tyler said.

There's been a lot of discussion of this issue over on Twitter, of which the following is a sample:

The #COVID19 outbreak has sent shockwaves through global financial markets. In this new alert, #TeamSPB London's Peter Crossley, Max Rockall and Maria Davies take a closer look at material adverse change clauses amid the #coronavirus outbreak. https://t.co/YkrzFo4AlU pic.twitter.com/q3IkDQGbNi

— Squire Patton Boggs (@SPB_Global) April 9, 2020

"Regarding the handful of terminated deals for which publicly filed agreements are available, none excluded outbreak of disease, epidemics, or the like from the scope of their material adverse effect (MAE) provisions—an exclusion that could have kept buyers on the hook." https://t.co/LYfeY5aNrV

— Ann Lipton (@AnnMLipton) April 8, 2020

Shots Fired: Recent Claims to Terminate M&A Deals Over COVID-19 Material Adverse Effects. #covid19 #coronavirus #troutmanpepper #mergersandacquisitions https://t.co/8iqCBpGWho

— Troutman Sanders (@tstweets) April 9, 2020

For prior coverage of MACs here at PB.com, see

The MAC is Back: Material Adverse Change Provisions After 'Akorn'

New article by a pair of Wachtell, Lipton lawyers sheds useful light on the status of material adverse change clauses: On December 7, 2018, the Delaware Supreme Court upheld the Delaware Court of Chancery’s October 1, 2018 decision wh...

Posted at 12:17 PM in Mergers and Takeovers | Permalink

New article by a pair of Wachtell, Lipton lawyers sheds useful light on the status of material adverse change clauses: On December 7, 2018, the Delaware Supreme Court upheld the Delaware Court of Chancery’s October 1, 2018 decision wh...

Deal making in the COVID19 era

M&A: "Auctions are accelerating in case conditions worsen. Sellers are choosing cash upfront over higher offers; and they’re doing it all over video chat while pets and children roam in the background." #MnA https://t.co/LGj8mGHAqw

— Grace Maral Burnett (@BurnettGraceM) March 24, 2020

Is the COVID-19 event a material adverse change for purposes of merger agreements?

In my Mergers and Acquisitions class, we discuss a material adverse effect clause that reads as follows:

"Company Material Adverse Effect" means any event, occurrence, fact, condition or change that is, or would reasonably be expected to become, individually or in the aggregate, materially adverse to (i) the business, results of operations, prospects, condition (financial or otherwise), or assets of the Company and its Subsidiaries, taken as a whole, or (ii) the ability of the Company to consummate the transactions contemplated hereby on a timely basis; provided, however, that, for the purposes of clause (i), a Company Material Adverse Effect shall not be deemed to include events, occurrences, facts, conditions or changes arising out of, relating to or resulting from: (a) changes generally affecting the economy, financial or securities markets; (b) the announcement of the transactions contemplated by this Agreement; (c) any outbreak or escalation of war or any act of terrorism; or (d) general conditions in the industry in which the Company and its Subsidiaries operate; provided further, however, that any event, change and effect referred to in clauses (a), (c) or (d) immediately above shall be taken into account in determining whether a Company Material Adverse Effect has occurred or would reasonably be expected to occur to the extent that such event, change or effect has a disproportionate effect on the Company and its Subsidiaries, taken as a whole, compared to other participants in the industries in which the Company and its Subsidiaries conduct their businesses.

The absence of such an event is a closing condition, so that if such an event occurs one or both parties could invoke it to justify terminating the deal.

It occurs to me that the COVID-19 crisis raises a great hypothetical as to the application of the MAE clause,

It seems obvious that the economic devastation being wrought by the coronavirus pandemic is "an event ... that is ... materially adverse to the business, results of operations, prospects, condition (financial or otherwise), [and] assets of the Company." 

As I explain in my book Mergers and Acquisitions, however, courts put the burden on the party seeking to invoke the clause to show that the allegedly material adverse effect will be significant and lasting. Accordingly, such a clause is treated as “a backstop protecting the acquirer from the occurrence of unknown events that substantially threaten the overall earnings potential of the target in a durationally-significant manner. A short-term hiccup in earnings should not suffice; rather the Material Adverse Effect should be material when viewed from the longer-term perspective of a reasonable acquiror.” IBP, Inc. v. Tyson Foods, Inc. (In re IBP, Inc. S'holders Litig.)., 789 A.2d 14, 68 (Del. Ch. 2001). See also  Hexion Specialty Chemicals, Inc. v. Huntsman Corp., 965 A.2d 715, 738 (Del. Ch. 2008) (“The important consideration therefore is whether there has been an adverse change in the target's business that is consequential to the company's long-term earnings power over a commercially reasonable period, which one would expect to be measured in years rather than months.”).

At this point, most commentators seem to be assuming that the impact of the pandemic will be felt over months or even years rather than just a short period.

So the question is whether any of the provisos are pertinent. Provisos (b) and (c) are inapplicable on their face. But what about (a)? Recall that it provides that "a Company Material Adverse Effect shall not be deemed to include events, occurrences, facts, conditions or changes arising out of, relating to or resulting from ... changes generally affecting the economy, financial or securities markets." A global pandemic like just such an event. But, as Gibson Dunn notes:

A pre-crisis MAE/MAC definition that makes no reference to COVID-19 (or even to pandemics or epidemics generally) may or may not be found to include the effects of COVID-19 in determining whether an MAE/MAC has occurred. In such cases, disputes may focus on whether definitional language that typically excludes general economic or market conditions and other broad based factors impacting the business climate or the target’s industry generally is sufficient to exclude the impact of COVID-19. Parties also may debate whether the potential impact of the virus was reasonably foreseeable at the time the agreement was signed or whether the impact is sufficiently long-lasting to be considered an MAE/MAC under applicable state law.

So if one of our parties wishes to invoke the MAE clause, they are going to have to prove that the event has had "a disproportionate effect on the Company and its Subsidiaries, taken as a whole, compared to other participants in the industries in which the Company and its Subsidiaries conduct their businesses." I'm having trouble thinking of a company that would be disproportionately affected by the pandemic compared to other companies in the same industry. Suggestions?

One wonders whether transaction planners will start adding pandemics to the war/terrorism clause of the standard MAE clause. Paul Weiss predicts that "it is likely that sellers will negotiate for more specific references to pandemics and epidemics in the exceptions to the definition of an MAE, just as terrorism exceptions became more commonplace following the events of September 11, 2001." Gibson Dunn agrees:

... both buyers and sellers would be well-advised to negotiate explicit language to address COVID-19 risk-allocation in the context of an MAE/MAC provision. We have seen this practice followed in response to past crises. We have already seen a fair number of more recent agreements that specifically exclude the impact of COVID-19 (most often building on an exclusion for any “pandemic” or “epidemic,” and sometimes only if it does not disproportionately affect a party) from the scope of an MAE/MAC definition. Whether excluding it completely or specifying a quantitative or qualitative level of financial or operational impact from COVID-19 that, if reached, would give rise to an MAE/MAC, specificity will guard against unexpected results.

Sean Griffith on the evolution of merger litigation

Ann Lipton informs us that:

Sean Griffith recently wrote a book chapter explaining how plaintiffs’ merger-related challenges developed over time.  Plaintiffs began by seeking disclosure-only settlements, but after Trulia stamped out the practice in Delaware, plaintiffs began bringing claims in federal court challenging corporate proxies under Rule 14a-9.  And once they got there, they realized they did not have to limit themselves to merger litigation, and began bringing other kinds of proxy-related claims, and eventually these morphed into individual, rather than class, actions.

Ann goes on to ponder DGCL 220 books and records inspections in the M&A context.

Delaware's Latest Guidance on Material Adverse Change Clauses

From Fried Frank:

Channel Medsystems, Inc. v. Boston Scientific Corporation (Dec. 18, 2019) is the Delaware Court of Chancery’s first decision issued since the Delaware Supreme Court’s 2018 Akorn decision to evaluate whether an acquiror had a right, under a merger agreement, to terminate a pending acquisition on the grounds that there was a “Material Adverse Effect” or “Material Adverse Change” in the target company. (We use “MAE” and “MAC” interchangeably in this memorandum.) Akorn was the first case in which the Court of Chancery, post-trial, found the existence of an MAE and the first post-trial Delaware decision to find that an acquiror had the right to terminate a merger agreement based on an MAE. In Channel, by contrast, Chancellor Bouchard ruled, after trial, that there was not an MAE and that the acquiror was required to close the merger.

Both Akorn and Channel involved the discovery, between signing and closing of a merger agreement, that a target company executive, without knowledge of the target, had submitted fraudulent reports to the Food and Drug Administration relating to the company’s products (in Akorn, the target’s key products, and in Channel, the target’s sole product). In Akorn, there was a dramatic decline in the target company’s financial performance and a severe and “durationally significant” loss of its potential future earnings due to the regulatory noncompliance. In Channel, however, before the acquiror sought to terminate the transaction, the FDA had accepted the target’s remediation plan (which indicated that FDA approval of the target’s product was likely); the remediation plan did not appear to involve significant ongoing costs or other effects on the target; and, prior to trial, the FDA approved the product. The Chancellor held that the acquiror had failed to prove, on a quantitative or qualitative basis, that an MAE would be reasonably expected to occur, and thus it did not have a right to terminate the agreement.

Lots more very helpful analysis follows.

Yours truly cited by Delaware Chancery Court in the Panera Bread Company Appraisal case

From Vice Chancellor Zurn's opinion:

The board of directors “has the sole power to negotiate the terms on which the merger will take place and to arrive at a definitive merger agreement embodying its decisions as to those matters.”⁴³⁴

⁴³⁴ Stephen M. Bainbridge, Mergers and Acquisitions 56 (2d ed. 2009) (citing 8 Del. C. § 251(b)); accord 8 Del. C. § 141 (“The business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors ....”).

IN RE APPRAISAL OF PANERA BREAD COMPANY, CV 2017-0593-MTZ, 2020 WL 506684, at *25 (Del. Ch. Jan. 31, 2020).

The preponderance of the evidence shows that the board directed Shaich’s negotiations and “arrive[d] at a definitive merger agreement embodying its decisions as to th[ose] matters.”⁴⁶³

⁴⁶³ Bainbridge, supra note 434, at 56.

Id. at *26.

 

Mesa Petroleum's T Boone Pickens has died, RIP

T. Boone Pickens Jr. Dies. Lots of memories, including the landmark case, Unocal v. Mesa Petroleum. And representing him at Baker Botts. And meeting him on Capitol Hill. And his role in Anatomy of a Merger. RIP https://t.co/i18Gg4ERip

— Gordon Smith (@professor_smith) September 11, 2019

I once talked to Pickens about old stories of his raids, particularly Gulf, and the reception he got then vs activists today. My favorite quote: "One said 'He’s a fast buck artist.' Who in the hell wants to be a slow buck artist?" https://t.co/yUx33lMgsR

— Dave Benoit (@DaveCBenoit) September 11, 2019

There’s a great moment in this documentary at about 17:20 where T Boone Pickens calls himself a geologist and Sir James Goldsmith calls himself a grocer. If you were engaged in the corporate takeover wars of the 1980s, that’s Robin Williams level comedy. https://t.co/8lyitpfpg6 pic.twitter.com/3V5L2qUthz

— Professor Bainbridge (@ProfBainbridge) January 4, 2019

The MAC is Back: Material Adverse Change Provisions After 'Akorn'

New article by a pair of Wachtell, Lipton lawyers sheds useful light on the status of material adverse change clauses:

On December 7, 2018, the Delaware Supreme Court upheld the Delaware Court of Chancery’s October 1, 2018 decision which held that Fresenius Kabi AG, a German pharmaceuticals company, had properly terminated its merger agreement with Akorn, Inc., a U.S. generic pharmaceuticals company. Akorn is the first time that a Delaware court has permitted the termination of a merger agreement on the basis of a material adverse effect, commonly known as a “MAC” or “MAE”. While the Delaware courts have previously opined on the scope and effect of MAC provisions in public merger agreements, no buyer had previously been able to successfully terminate a merger agreement on such grounds. Akorn upends a longstanding view among practitioners that the Delaware courts will generally decline to recognise a MAC and demonstrates, that given sufficiently egregious facts and relevant merger agreement provisions, the Delaware courts will allow a buyer to walk away from a merger agreement based on changed circumstances or contractual breaches. Akorn also provides new insights and guidance on how Delaware courts may interpret MAC provisions as well as practical considerations relevant to M&A negotiations, merger agreement drafting, and how to handle unexpected negative developments going forward. The Delaware Supreme Court’s twopage affirmation was as terse as the 246-page Court of Chancery opinion was exhaustive, so the discussion below is largely drawn from the latter opinion by Vice Chancellor Laster.

Emmerich, Adam O. and Norwitz, Trevor S., The MAC is Back: Material Adverse Change Provisions After 'Akorn' (March 7, 2019). The International Comparative Legal Guide to: Mergers & Acquisitions, Global Legal Group Ltd., 13th ed. 2019. . Available at SSRN: https://ssrn.com/abstract=3400249

Griffith on Representation & Warranty Insurance in M&A Contracting

Very important new paper:

Efficient contracting depends upon imposing risk on the party with superior access to information. Yet the parties in mergers and acquisitions transactions now commonly use Representation and Warranty Insurance (“RWI”) to shift this risk to a third-party insurer. Because liability and trust go together, RWI would seem to give rise to a credible commitment problem between the transacting parties, and it raises adverse selection and moral hazard problems for the insurer.

This paper examines the emergence of RWI, focusing on three interrelated questions. First, how does RWI affect transactions? Second, why do transacting parties use RWI? And third, why do insurers sell RWI?

The paper follows a two-fold empirical methodology. It develops data both by surveying RWI market participants—insurers, brokers, lawyers, and private equity managers—and also by analyzing a sample of over 400 acquisition agreements, approximately half of which involved RWI.

The results show a broad transfer of mispricing risk from buyers and sellers to insurers. RWI allows sellers to minimize risk at exit and allows buyers to control risk aversion in selecting investments. At the same time, RWI threatens to disrupt the contracting process by introducing problems of credible commitment, moral hazard, and adverse selection. Insurers’ ability to respond to these problems through shifts in the deal market and the underwriting cycle may determine whether RWI ultimately facilitates or impedes mergers and acquisitions.

Keywords: mergers, acquisitions, contract, insurance, representations, warranties, private equity, indemnification, escrow, adverse selection, moral hazard, credible commitment, M&A, deal, rep & warranty, transaction insurance

Griffith, Sean J., Deal Insurance: Representation & Warranty Insurance in M&A Contracting (May 28, 2019). Minnesota Law Review, Forthcoming; Fordham Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3395491

Delaware Chancery Court Flunks Target Firm's lawyers

From Francis Pileggi:

A recent Delaware Court of Chancery opinion began by describing the complaint as reading like a law school exam designed to test the knowledge of a student regarding the requirements in the DGCL that must be satisfied in connection with a merger, and the court commented that the company would not have done well on the exam. 

Chuckle. Go read the whole thing.

Case note on Verition Partners Master Fund Ltd. v. Aruba Networks, Inc.

Delaware Supreme Court Clarifies Appraisal Law https://t.co/5cOUFtIllt Case note on Verition Partners Master Fund Ltd. v. Aruba Networks, Inc.

— Professor Bainbridge (@ProfBainbridge) May 1, 2019

Kahn v. MFW requires controller self-disablement early

Delaware Supreme Court Clarifies Ab Initio Requirement for BJR Review https://t.co/HAgLzLGQJM Controller must self-disable before substantive economic bargaining starts

— Professor Bainbridge (@ProfBainbridge) May 1, 2019

Keith Sharfman and Bill Carney on Aruba and appraisal arbitrage causes me to ask "why not just abolish appraisal"?

They begin with a brilliantly concise statement of the problem:

The corporate law world has been abuzz of late about the commendable effort by Delaware’s courts to scale back “appraisal arbitrage”: a trading strategy predicated on deal dissenters receiving via appraisal litigation more for their shares than the deal prices from which they dissent. For years, parties engaging in appraisal arbitrage enjoyed the opportunity to initiate essentially risk free appraisal litigation with substantial upside potential, because it was assumed by courts and litigants that “fair value” entitled dissenters to at least the price of the deal they were rejecting and potentially more. But happily, this misunderstanding and misapplication of the law of appraisal now appears finally to have reached its end.

They continue:

The Court of Chancery Court then struck yet a further blow in 2018 in its appraisal decision in Verition Partners Master Fund, Ltd. v. Aruba Networks, Inc., which awarded deal dissenters even *less* than the deal price. Relying on a previously underenforced provision of Delaware’s appraisal statute, Section 262(h), which excludes from fair value any value that is uniquely associated with the deal from which appraisal-seeking shareholders dissent, the Court of Chancery awarded to the dissenters as fair value only their shares’ public trading price prior to the deal’s announcement.

They go on to discuss various aspects of the debate. Do go read the whole thing. And then answer me this question: Why not just abolish appraisal?

I also commend to your attention my post from 2012 on appraisal.

Battling over Boilerplate in M&A Agreements

In one corner we have Choi, Stephen J. and Gulati, Gaurang Mitu and Scott, Robert E., The Black Hole Problem in Commercial Boilerplate (November 25, 2016). Available at SSRN: https://ssrn.com/abstract=2835681

Rote use of a standard form contract term can erode its meaning, a phenomenon made worse when the process of encrustation introduces various formulations of the term. The foregoing process, when it occurs, weakens the communicative properties of boilerplate terms, leading some terms to lose much, if not all, meaning. In theory, if a clause is completely emptied of meaning through this process it can create a contractual “black hole.” The more frequent and thus potentially more pervasive problem arises when, as the term loses meaning, random variations in language appear and persist, resulting in what we term a “grey hole.” The question that follows is what interpretive strategy courts should use when parties exploit these variations, persuading a court to adopt an interpretation of the grey hole term that (a) surprises the market that previously had disregarded the term and (b) results in an interpretation that the market disavows. Traditional doctrine holds that even if the court errs, parties have an incentive to revise the standard language to exclude the aberrant interpretation. But what if the assumptions about the costs and motivations to revise this type of boilerplate are wrong? We seek to gain purchase on this question with a study of the pari passu clause, a standard provision in sovereign debt contracts that almost no one seems to understand. This clause gained fame in 2011 because of a series of court decisions in New York arguably misinterpreting a particular variation of the clause. Even though the courts’ interpretation put at risk a multi-trillion dollar debt market, meaningful revisions to the language of the boilerplate term did not begin to appear until late 2014. Market forces, in other words, worked very slowly to remedy a major systemic problem, leading to considerable costs. We ask, therefore, whether courts might not do more to avoid the problem at the front end rather than depend on market forces to correct court error at the back end.

In the other corner we have Anderson, Robert and Manns, Jeffrey David, Boiling Down Boilerplate in M&A Agreements: A Response to Choi, Gulati, & Scott (January 1, 2019). Available at SSRN: https://ssrn.com/abstract=3327687

“Boilerplate” consists of standardized terms whose meaning is intended to be consistent from one transaction to the next, and these provisions are ubiquitous in contracts and related transactional documents. In their recent Duke Law Journal article Stephen Choi, Mitu Gulati, and Robert Scott have highlighted the potentially corrosive effect of the legal drafting process on boilerplate provisions. They show how incremental edits to boilerplate pari passu clauses for sovereign debt agreements have led to textual “black holes,” which potentially undercut the standardization purpose, wording, and substantive meaning of these boilerplate provisions. In this Article we offer preliminary evidence of a similar textual “black hole” phenomenon taking place in the mergers and acquisitions context.

We show that the mergers and acquisition context epitomizes the problem of unreflective copying of precedent provisions combined with ad hoc edits to individual clauses, which erode the textual integrity and meaning of boilerplate provisions. Each agreement is based on a prior deal precedent, and drafters frequently incorporate sections of the prior deal without sufficient scrutiny about the degree to which idiosyncratic novelties have been introduced in the precedent document that may be inapplicable to the new deal. At the same time, high levels of “editorial churning” take place in the process of transforming each precedent into the current acquisition agreement. The result is a problem of “drafting drift.” Boilerplate provisions live on from deal to deal, yet gradually shed their textual integrity and potentially lose their clear meaning as ad hoc edits are copied from deal to deal and new ad hoc edits are added at each stage.

We show how it is possible to identify the paragraphs of acquisition agreements which serve as boilerplate and to document both the degree and type of textual “drift” of these provisions over multiple generations. We construct “family trees” for boilerplate provisions by tracing the ancestors of each provision backwards in a linear way to each prior precedent. Then we reverse the process to show how ancestor provisions have progeny extending out in multiple directions which become increasingly dissimilar to their original ancestor and to each other over a few generations of acquisition agreements.

Our study shows that incremental changes in boilerplate from one generation to the next foster rapid “speciation” of the terms. Small additions and deletions from boilerplate text lead to significant cumulative effects over multiple generations. We demonstrate that this textual “drift” takes place both within individual boilerplate lineages, but also even more broadly for boilerplate provisions that have a common ancestor precedent, yet evolve separately along different lineages of precedents. Like the Big Bang, the heterogeneity of boilerplate text appears to increase in all directions, which supports an “expanding universe” theory for boilerplate that undermines the textual integrity and the meaning of boilerplate terms. While we will expand on the quantitative and qualitative analysis of the evolution of boilerplate in a future work, the preliminary evidence presented in this paper reinforces the case for the textual “black hole” theory.

Saying goodbye to entire fairness

My friend and UCLAW colleague Iman Anabtawi recently wrote an insightful article on Delaware's evolving jurisprudence on conflict of interest transactions, especially in the M&A context:

Merger and Acquisition (M&A) transactions create the potential for self-interested behavior by the boards of directors of acquired, or target, corporations because target boards may have self-interested reasons for preferring one acquirer over any other. The preferred acquirer may, for example, be more likely to retain the services of certain board members or to employ them in some other capacity after the completion of the transaction. In recognition of these potential conflicts of interest, the courts have recognized that target boards of directors may not always be incentivized to exercise their business judgment in M&A transactions in the best interests of shareholders and have therefore held them to the heightened standard of review of enhanced scrutiny. Enhanced scrutiny contemplates substantive judicial review of the reasonableness of the target board’s conduct in the sale of the company. Until recently, enhanced scrutiny review was not susceptible to being adjusted downward to business judgment-level review through procedural safeguards, such as the constitution of a special committee of the board or shareholder ratification. A special committee was not considered to be an effective means of cleansing an inherent conflict, and shareholder approval of the transaction was deemed to approve only the board’s decision to sell, as opposed to the board’s conduct of the sale process. The Delaware Supreme Court revisited the issue, holding that the shareholder ratification doctrine applies to a shareholder approval of an M&A transaction on the rationale that shareholders, particularly institutions, are at least as well-positioned as judges to evaluate the merits of a sale. As a result, approval of an M&A deal by target shareholders displaces enhanced scrutiny of the board of directors’ conduct in managing the sale in favor of the business judgment rule, effectively making the target board’s decision unreviewable. This Article argues that recent Delaware jurisprudence on shareholder ratification constitutes a fundamental shift in M&A jurisprudence, predicts that, while it will reduce deal litigation, it will have unnecessary detrimental effects on deal process, and proposes a procedural mechanism for mitigating those effects in the form of a bifurcated shareholder vote on each of the deal process and the sale transaction.

Anabtawi, Iman, The Twilight of Enhanced Scrutiny in Delaware M&A Jurisprudence. 43 Delaware Journal of Corporate Law (January 2019, Forthcoming); UCLA School of Law, Law-Econ Research Paper No. 18-11. Available at SSRN: https://ssrn.com/abstract=3248474

Amir Licht has just posted an article that deserves to be read in conjunction with Iman's piece:

This Essay entertains the idea that Delaware’s corporate law is set on a trajectory that would eventually lead to reforming its doctrine of entire fairness as we now know it by retiring the doctrine’s substantive fairness review prong and insisting on fully-informed consent as the only way for validating tainted transactions. A growing array of cases, in which the centerpiece is Kahn v. M&F Worldwide Corp. (MFW), creates a legal sphere within which traditional entire fairness analysis has no application. Within this sphere, things rise or fall depending solely on the existence or absence of an uncoerced fully-informed ratification, in line with fundamental principles of fiduciary law in Delaware and in other common law jurisdictions. The critical move, which may take time to materialize, will take place when the courts deal the traditional doctrine the coup de grâce and abolish substantive fairness review entirely, if one may say so. Treating this development as highly desirable in principle, this Essay discusses practical and normative issues that call for attention in order to ensure its successful functionality, including the use of technology to ensure the integrity of informed consent through shareholder voting and the rise of institutional cross ownership, which may call for special attention in MFW-relevant settings.

Licht, Amir N., Farewell to Fairness: Towards Retiring Delaware's Entire Fairness Review (February 8, 2019). European Corporate Governance Institute (ECGI) - Law Working Paper No. 439/2019. Available at SSRN: https://ssrn.com/abstract=3331097 or http://dx.doi.org/10.2139/ssrn.3331097