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Abstract: 

In recent years, the Delaware courts have seemed more reluctant than they have been to dismiss M&A challenges under Corwin or MFW at the pleading stage. In this article the authors address this “swinging back of the Corwin-MFW pendulum.” They begin with a review of disclosure obligations under Delaware law and the increased focus on disclosure. They then turn to the emboldening of stockholder-plaintiffs in Section 220 books and records litigation, the amplification of directors’ oversight responsibility, and the liability of officers ˆ’ and the potential liability of buyers ˆ’ for flawed disclosures. They close with notes on preliminary injunctions and general practice points for M&A disclosure.

Keywords: Corwin v. KKR Fin. Hldgs. LLC; Kahn v. M&F Worldwide Corp; Section 220 “Books and Records” Litigation; In re Pattern Energy Grp. Inc. S’holders Litig; Materially Flawed Disclosure; In re Columbia Pipeline Grp., Inc.; In re Mindbody, Inc. S’ho

Affiliations:  1: Fried, Frank, Harris, Shriver & Jacobson LLP; 2: Fried Frank; 3: Fried Frank; 4: Fried Frank.