My most recent article, Private Equity and the Heightened Fiduciary Duty of Disclosure, is coming out in the latest volume of NYU's Journal of Law & Business.
There, I argue that Delaware courts are concerned with conflicts of interest in private equity deals and are subjecting them to more intense scrutiny than strategic transactions. As a result of this scrutiny, several private equity deals have been enjoined, while strategic deals with similar defects have not.
The interesting thing, at least to me, is how Delaware is doing it. Instead of enjoining transactions on loyalty grounds, which would be deadly to those deals, courts are finding disclosure deficiencies. Using this approach, Delaware tries to have its cake and eat it too. It voices its disapproval of the process and ultimately allows shareholders to decide if they want the fruits of the tainted search.
Check it out and let me know what you think.
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