I posted on the similarity of Disney and Van Gorkom back in January, and I still think they look very similar. The Chancellor's list of distinguishing factors was not very compelling. But you make a good point, Larry. Who cares about Van Gorkom anymore, except people who are interested in legal history? Taking the 2003 Disney opinion and this opinion together, it looks to me like bad faith is incredibly narrow. Directors who do anything pass the test. Look at Sidney Poitier, for example. Great actor. Horrible director. But not liable for abdicating his responsibility as a member of the compensation committee.

Interestingly, the Chancellor found it necessary to distinguish this case from Van Gorkom (150-54). He observed that the Ovitz contract, though large, was still smaller in relation to the corporation than that in Van Gorkom, and therefore did not require as much board-level procedure (he notes, at 533, that a sub-executive could have spent as much money on a movie as Eisner spent on Ovitz).

This is an important point because it speaks to the shock value and the journalistic interest in a failed but ordinary transaction or business endeavor that may motivate shareholders, lawyers and even chancellors but not necessarily rise to the level of legally cognizable "board-level" interest in today's massively wealthy conglomerates. It is surely obscene that Michael Eisner could walk away from Disney with hundreds of millions of dollars as a "reward" for screwing up everything he touched, but as painful as it is to admit, in Hollywood this is "real money" yet still not a stunning figure considering the magnitude of the (a) Disney, (b) Ovitz's financial sphere of influence at the time and (c) the hoped-for synergies to be realized by the combination.