Delaware Advance Notice Decisions Highlight Move Toward Enhanced Scrutiny of Board Actions, Even Where Conflicts Exist
Cooley M&A
APRIL 13, 2022
Like US constitutional law, Delaware courts apply a tiered standard of judicial review to actions taken by the board of directors of corporations: Business judgment deference (rational basis). Enhanced scrutiny under Unocal and Revlon (intermediate scrutiny). The compelling justification standard articulated in Blasius (strict scrutiny). In the constitutional arena, the failure to satisfy the strict scrutiny standard applied in First and Fourteenth Amendment cases led one constitutional scholar
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