Mark Lebovitch is an Adjunct Professor at Penn Law School. This post was prepared for the Forum by Mr. Lebovitch and is part of the Delaware law series; links to other posts in the series are available here.
On November 8, 2023, I had the honor of guest lecturing Professor Jesse Fried’s Harvard Law School M&A Litigation Class. The lesson title was “The Vitality of the Unocal Doctrine and In re Edgio, Inc. Stockholders Litigation.” The presentation addressed various tactical issues in identifying and prosecuting breach of fiduciary duty suits, but focused on the Court of Chancery’s legally significant discussion of the interplay between the Corwin doctrine, Unocal standard, and form of relief sought.
When I was recently asked to turn that presentation into a note, I returned to a question the lecture left unanswered: Why did the Court feel compelled to address such complex – yet avoidable –issues?
The recent oral argument in In re Match Group, Inc. Derivative Litigation shed light, albeit indirectly, on the Edgio opinion’s complexity. Wachtell Lipton legend Ted Mirvis told the Delaware Supreme Court that they could safely adopt his clients’ proposed bright-line and rigid rule requiring dismissal of most conflicted-controller transactions, since the Chancery Court judges “are not so easily fooled” and can avoid unjust outcomes.
Ted’s insight (ironic as applied to Match) may explain why the Edgio ruling grappled with the Corwin doctrine the way it did. If so, perhaps the broader lesson is that Delaware should rely less on rigid dismissal doctrines and revert to trusting its judges.
