On April 20, 2012, Vice Chancellor Noble of the Delaware Court of Chancery issued an opinion in Icahn Partners LP v. Amylin Pharmaceuticals, Inc. [1] granting a motion to expedite a claim by Carl Icahn that Amylin’s directors breached their fiduciary duties by not waiving Amylin’s advance notice bylaw. Following the passage of the bylaw deadline, Icahn sought to nominate candidates for election to Amylin’s board of directors in the wake of his learning of Amylin’s recent rejection of an unsolicited takeover proposal by Bristol-Myers Squibb Co. Vice Chancellor Noble found that Icahn successfully made a “sufficiently colorable claim” [2] of irreparable injury as a result of the Board’s decisions to reject the Bristol-Myers proposal and his request to waive the advance notice deadline and re-open the nomination process.

The Facts

Amylin’s bylaws contain a fairly customary advance notice provision requiring stockholders to submit director nominations at least 120 days prior to the first anniversary of the preceding year’s annual meeting, unless the meeting date is delayed or advanced by more than 30 days from the anniversary. Given that Amylin’s 2011 annual meeting was held on May 24, 2011 and its 2012 annual meeting was scheduled for May 15, 2012, the cutoff for valid stockholder nominations was January 25, 2012 (the 120th day prior to the first anniversary of the May 24, 2011 meeting). No stockholder nominations were received prior to such date.

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