Law.com has an article in its In-House Counsel section today on lessons from the Disney/Michael Ovitz case decided by the Delaware Court of Chancery in August. I taught this case in BA last semester, and it was very helpful that Gordon's case book (with Cindy Williams) had the earlier opinion of the court refusing to dismiss the claim before trial. Because we had the two opinions, we could discuss how a set of facts can win on a motion to dismiss, but still not prove at trial, without additional facts, the breaches alleged given the difference in the burden of proof. The article today emphasizes that corporate counsel should strive to have not only provable facts to win a case brought for breach of fiduciary duty, but also have the facts to win a dismissal before trial and save the company the costs of litigation.
Of course, I had to chuckle at the opening paragraph: "Having now had a chance to digest the decision and review the eight-year history of messy, public litigation over Michael Ovitz's hiring. . . ." Of course, here at the Glom, we took about 12 hours to do the same thing before launching the Disney forum!
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