June 09, 2006
Questions about the Disney opinion
Posted by Account Deleted

Now that the Delaware Supreme Court has finally opined on Disney, maybe the old gang that has gathered in this space before would like to get back together to discuss the case. I've already posted at my home site. 

Let me suggest a few topics if anybody wants to join in, most of which are touched on in my post:

1. The future of due care and Van Gorkom. What does this case say about the nature of gross negligence?

2.  What are the case's implications for bad faith and the application of 102(b)(7)? What kinds of facts might constitute bad faith?  Given the court's view of bad faith, is there any longer a meaningful role for gross negligence? 

3. What, if anything, does the case say about how it might address the undecided questions, such as the application of the bjr to officers.

4.  What does the case imply about Roe's thesis concerning federal law's impact on Delaware?

5. What can be said now about the relation between Delaware and the federal law of corporate governance?  Has federal law taken over the Caremark business just as it has disclosure?

6.  What, if any, role do theories of "good governance" and best practices have on directors' liabilities after Disney?

7.  What are the decision's implications for the executive compensation debate?

8.  What's likely to be the single biggest effect of this decision?

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