Authors: Jonathan R. Macey
ISBN-13: 9780314180483, ISBN-10: 0314180486
Format: Paperback
Publisher: Thomson West
Date Published: April 2008
Edition: 1st Edition
Book Synopsis
Table of Contents
Introduction iii
Lynn Stout, Why We Should Stop Teaching Dodge v. Ford 1
Introduction 1
Dodge v. Ford on Corporate Purpose 2
Dodge v. Ford as Weak Precedent on Corporate Purpose 3
The Lack of Authority for Dodge v. Ford's Positive Vision of Corporate Purpose 4
The Lack of Authority for Dodge v. Ford's Normative Vision of Corporate Purpose 7
On the Puzzling Survival of Dodge v. Ford 9
Conclusion 10
Geoffrey Miller, A Glimpse of Society Via a Case and Cardozo: Meinhard v. Salmon 12
Introduction 12
Background 12
The Players 16
The Deal 19
The Fallout 20
The New York Court of Appeals and Cardozo 21
Post-Decision 24
Conclusion 27
James Cox & Eric Talley, Hope and Despair in the Magic Kingdom: In re Walt Disney Company Derivative Litigation 30
The Paycheck in the Courtroom 31
The Slow Defeat of Substance by Process 31
Demand Requirements and the Alchemy of Layered Process 34
The State Competition Dimension 36
Disney as a Culminating Event 37
The Judicial Windup 38
The Supreme Court Opinion 41
The Aftermath 42
Does Disney Mark a Sea Change for Fiduciary Law? 43
Jill Fisch, The Transamerica Case 46
Background to the Transamerica Case 47
The Transamerica Decision 50
Further Development of the Federal Proxy Rules 53
The Federally Delineated Shareholder Rule in Director Elections 63
Recent Developments in Shareholder Voting Rights 67
The Mechanics of the Voting Process 73
The Long Term Implications of Transamerica 76
Robert Thompson, Mapping Judicial Review: Sinclair v. Levien 79
The Parties and the Case 80
Mapping the Space for Judicial Decisions and Charting the Path That Courts Will Take in a Fiduciary Duty Case 84
How Far Should Parent Shareholders Be Able to Go in Controlling Their Subsidiary Corporations For Selfish Interests? 91
Conclusion 96
Douglas Moll, Protection of Minority Shareholders in Closely-Held Corporations: Donahue v. Rodd Electrotype Co. 98
Introduction 98
The Donahue Decision 101
Analysis and Discussion 104
Recognition of the Minority Shareholder's Plight 105
The Donahue Doctrine 105
The Shareholder-to-Shareholder Fiduciary Duty 105
The Equal Opportunity Rule 111
The Partnership Analogy 113
A Contrary Approach? The Nixon v. Blackwell Decision 115
Conclusion 119
Jonathan Macey, Judicial Review of Corporate Decisions: Kamin v. American Express Company 120
Introduction 120
Kamin v. American Express: Factual Background 121
Qualifying for and Applying the Business Judgment Rule 122
Qualifying for the Business Judgment Rule: A Plaintiff's Perspective 124
The Requirement that the Decision be Exclusively a Matter of the Business Judgment of the Board of Directors 125
The Allegation Issue: Complaints Really are Important 126
The Decision-making Process Employed by the Board 128
The Accounting, Economics and Finance of Kamin v. American Express 130
Digging Deeper: Some Quibbles With the U.S. Approach to Judicial Review of Corporate Decision-Making 135
Conclusion 138
Stephen Bainbridge, The Iconic Insider Trading Cases 139
The Insider Trading Prohibition Emerges 139
The Supreme Court Sets Limits 141
The Misappropriation Theory Emerges 144
Why the SEC Pushed the Misappropriation Theory 145
The Poor Fit Between Insider Trading and Securities Fraud 146
The Policy Basis For Regulating Insider Trading 149
O'Hagan 155
The Holding 156
Status of Central Bank and Santa Fe 157
O'Hagan and the Property Rights Rationale 159
David Skeel, Shareholder Litigation: The Accidental Elegance of Aronson v. Lewis 165
Introduction 165
The Early History of the Derivative Suit 167
Securities Class Actions And The Expanding Scope Of Securities Law 173
Zapata v. Maldonado 176
The Chancery Court Decision 178
Defining Demand Futility: The Supreme Court Decision 181
Do Derivative Suits Still Matter? 185
The Legacy of Aronson 186
The Plaintiff's Attorney Auction 189
Aronson and the Federal Securities Law Reforms 190
Conclusion 191
Vic Khanna, The Growth of the Fiduciary Duty Class Actions for Freeze Out Mergers: Weinberger v. UOP, Inc. 193
Freeze Out Mergers 194
Enter Weinberger v. UOP, Inc. 199
Are the Changes Wrought by Weinberger Desirable? 200
Cases Following Weinberger and Recent Controversies 203
Concluding Thoughts 208
Logan Beirne & Jonathan Macey, Out With the Bathwater: Erosion of Shareholders' Takeover Power 209
The Market For Corporate Control 211
The Emergence of the Tender Offer 212
Management Strikes Back: The Williams Act and Beyond 214
Emergence of the Modern Takeover: The Judiciary Is Next to Take Aim 215
Historical Context: The Barbarians Cometh 216
The Target Companies' Response: The Poison Pill Mechanism 218
The Trilogy Begins: Unocal 220
Unocal and the Prisoner's Dilemma 221
The Battle for Unocal 223
The Attack on the Poison Pill Widens: Moran 224
The Trilogy Capstone: Revlon Duties 225
Conclusion 228
Fred McChesney, The "Trans Union" Case: Smith v. Van Gorkom 231
Leveraged Buyouts 231
The Mechanics of a Leveraged Buyout 232
The Trans Union Leveraged Buyout 235
The Applicable Standard of "Gross Negligence" 239
Where Trans Union Directors Allegedly Went Wrong 240
Procedural Versus Legal Standards Governing the Trans Union Board 241
Expected Effects of Rejecting the Pritzker Offer: A Simple Model 244
Van Gorkom and the Contractual Theory of the Firm 252
Conclusion 256
Donald Langevoort, Investor Protection and the Perils of Corporate Publicity: Basic Inc. v. Levinson 257
Materiality 257
The Litigation 257
Some Questions 264
The Presumption of Reliance 270
Conclusion 276
Hillary Sale, Good Faith's Procedure and Substance: In re Caremark International Inc., Derivative Litigation 278
In re Caremark International, Inc., Derivative Litigation 280
Smith v. Van Gorkom and its Procedural Progeny 286
In re The Walt Disney Co. Derivative Litigation 288
Stone v. Ritter 289
"Red Flags" 292
Conclusion 293
Subjects