Notwithstanding the excellence of the Delaware judiciary, the multiple standards of review under Delaware law for reviewing the actions of a target’s directors involved in a merger or acquisition transaction are cumbersome, a source of needless litigation, and economically inefficient. In my paper Change of Control Special Committee: Breathing Life into CNX, recently made public on SSRN, I put forward a proposal to resolve these issues through changes in Delaware’s General Corporation Law (“DGCL”). DGCL should be amended to permit the shareholders of a corporation to adopt a provision requiring that if the corporation becomes a target of a bona fide acquisition proposal, the board of the corporation must petition the Delaware Court of Chancery for the appointment of an independent, disinterested, and knowledgeable special committee of the board (a “Change of Control Special Committee”). This Committee would have complete power over the acquisition transaction. At the discretion of the Delaware Court of Chancery, a member of the current board could be appointed to the Change of Control Special Committee.

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