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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 − and the potential liability of buyers − 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.