Volume 65 - Number 3

The Business Lawyer

May 2010 Issue, Vol. 65 No. 3 By ABA Business Law Section

Complete collection for May 2010

Symposium

Is Delaware's Antitakeover Statute Unconstitutional? Evidence from 1988-2008

By Guhan Subramanian , Steven Herscovici , and Brian Barbetta

65(3): 753 - 759 (May 2010)
Delaware?s antitakeover statute, codifi ed in Section 203 of the Delaware corporate code, is by far the most important antitakeover statute in the United States. When it was enacted in 1988, three bidders challenged its constitutionality under the Commerce Clause and the Supremacy Clause of the U.S. Constitution.

Commentaries

A Timely Look at DGCL Section 203

By Eileen T. Nugent

65(3): 753 - 759 (May 2010)
(?SHB?) do an excellent job of reminding lawyers of something that none of us should ever forget: it always makes sense to go back and review the premise underlying an accepted approach, particularly when that reliance is of long standing and somewhat unquestioning.

After Twenty-Two Years, Section 203 of the Delaware General Corporation Law Continues to Give Hostile Bidders a Meaningful Opportunity for Success

By A. Gilchrist Sparks, III and Helen Bowers

65(3): 761 - 769 (May 2010)
Based on this ?empirical evidence,? they claim that the constitutionality of Section 203 ?is up for grabs.? 6 After reading their article and examining their data, we conclude that SHB have failed to provide a reason to reexamine the constitutionality of Section 203.

A Practical Response to a Hypothetical Analysis of Section 203?s Constitutionality

By Stephen P. Lamb and Jeffrey M. Gorris

65(3): 771 - 778 (May 2010)
Delaware?s antitakeover statute, Section 203 of the Delaware General Corporation Law (the ?DGCL?), is an anomaly. Unlike most provisions of the DGCL, it is inordinately complicated and its adoption was the subject of heated and public debate. The most extraordinary thing about ...

A Trip Down Memory Lane: Reflections on Section 203 and Subramanian, Herscovici, and Barbetta

By Gregg A. Jarrell

65(3): 779 - 787 (May 2010)
SHB present empirical evidence that since 1990, shortly after the passage of Delaware?s merger moratorium law (Section 203), no hostile bidder of a Delaware company has obtained the more than 85% of non-management shares in a single tender offer necessary to avoid the restrictions imposed by Section 203. 1 Apparently, Section 203 has made it impossible for ...

Preemption as Micromanagement

By Larry E. Ribstein

65(3): 789 - 798 (May 2010)
Guhan Subramanian, Steven Herscovici, and Brian Barbetta (?SHB?) argue thatthe constitutionality of the Delaware takeover statute is ?up for grabs? 1 because it does not give bidders the ?meaningful opportunity for success? three Delaware district court opinions require to avoid preemption by the Williams Act. 2 However, SHB?s analysis actually provides support for the opposite result by ...