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I just had the privilege of participating in Columbia Law School’s M&A conference, on a panel with Ed Rock of NYU, Eduardo Gallardo of Paul Hastings, and John Mark Zeberkiewicz of RLF, moderated by Dorothy Lund of Columbia, to discuss SB 21 and its likely impact going forward.

In this post, I’ll elaborate on some stuff I said at the panel.

After SB 313 passed authorizing shareholder agreements – ostensibly to conform the law with “market practice” – Gladriel Shobe, Jarrod Shobe, and William Clayton found that the law in fact went much further than actual market practice to authorize a broad array of contracts that are somewhere between uncommon and nonexistent.

That kind of thing is what gives rise to the suspicion that when the Delaware Corporation Law Council recommends legislative amendments, it does so not as neutral arbiters, but as representatives specific clients who desire particular legislative outcomes. And while there is nothing new or surprising about lobbyists advocating for legal changes that benefit their clients, the CLC is not supposed to be acting as a lobbyist when it participates in the legislative process. In some ways, then, SB 313 always read to me as the…

Following on my Weinberg Center blog post back on October 27, I write today to promote participation in a survey hosted by the University of Delaware’s John L. Weinberg Center for Corporate Governance on public company Rule 14a-8 shareholder proposals under the Securities Exchange Act of 1934, as amended. The survey website explains that the Weinberg Center “seeks to gather practical insights from companies, investors, and related professionals about the scope and effectiveness of the current federal shareholder proposal rule (Rule 14a-8).” I suspect that the referenced professionals include lawyers representing both public companies and shareholders, as well as other advisors to each. More information about the survey can be found on the website.

In the spirit of that October 27 blog post, I am appreciative of the effort to gather information from a wide variety of constituents. I have taught group-oriented change leadership to undergraduate honors students here at The University of Tennessee using design thinking methods, in which the first step is undertaking to empathize. This step involves the team researching, and endeavoring to understand, the needs of various stakeholders. One design thinking website describes this first stage of a group-oriented process of innovation through design thinking…

With the 2026 National Business Law Scholars Conference coming to the William S. Boyd School of Law at the University of Nevada, Las Vegas on May 26-27 next year, I have some suggestions on accommodation options.

My suggestion is that you should book your rooms now because there are some great deals available. As I’m writing this, the all-in prices for the following properties are exceptionally reasonable:

  • Bellagio – $198/night
  • Aria – $170/night
  • Vdara (non-gaming) – $142/night
  • Park MGM – $113/night
  • NoMad Hotel @ ParkMGM – $185/night
  • Cosmopolitan – $215/night

I understand that some folks have already booked at the Bellagio. It’s a good deal and a bit cheaper still if you join MGM Rewards. If you wanted the Bellagio this weekend, the current price is over $1,000 a night. Of course, F-1 is in town and we’re not going to be competing with that for NBLSC. Candidly, I live here and these prices are making me think about locking in a stay-cation around the same time.

The properties listed above are all MGM Resorts properties within easy walking distance of each other. Clustering this way makes it easier to meet for dinners, drinks, or just catching rides over…

As a lawyer who’s practiced for many years on King Street in Wilmington, I’m saddened by the need to depart. For decades, Delaware was known for predictable court outcomes, respect for the judgment of corporate boards, and speedy resolutions. These traits made the state the one-stop shop for major company incorporations—which have brought in more than $1 billion in annual revenue to the state.

Delaware’s legal framework once provided companies with consistency. But no more. Delaware’s Chancery Court in recent years has been rife with unpredictable outcomes. To their credit, lawmakers in Dover have repeatedly tried to rectify the inconsistent outcomes of the once-revered court through ad hoc legislative responses. But companies need a more efficient and sustainable solution than relying on the legislature to

…

It’s been recently reported that the White House is looking to wage a full scale war on proxy advisors.  Not only are they being singled out for antitrust probes, but apparently they’re being investigated by CFIUS over their foreign ownership.

Additionally, the White House is looking for ways to issue some kind of securities-law based executive order to curb their influence.

Now, just to state the obvious about why this is all happening, I refer back to a prior blog post:

one cannot help but suspect that companies’ reasons for objecting to proxy advisors is the same as their objection to unions – it’s not conflicts or corruption, it’s that they overcome transactions costs of a disaggregated constituency and facilitate coordination so as to create a countervailing power center.  Managers, in other words, just don’t want to be challenged – by anyone.

But anyway. I keep getting questions about what the White House could actually do.  And I can’t answer that from an antitrust or national security perspective, but I can spitball some ideas from a securities law perspective, though I’m sure the forces gunning for proxy advisors are probably far more creative than I…

Previously, I covered a Nevada Business Court decision applying a common law business judgment rule to Nevada limited liability companies with fiduciary duties. That decision is now being challenged under Nevada’s mandamus procedure. To aid the Nevada Supreme Court in considering the issue, I along with other Nevada business law professors and Nevada business lawyers, filed a request to submit an amicus brief on the importance of the business judgment rule.

The brief contends that Nevada should apply a common law business judgment rule to breach of fiduciary duty claims for Nevada LLCs. We explained that the common law business judgment rule has been a part of American common law for a long time and reviewed the benefits it provides. Most business law professors and business lawyers know the reasons–all standard canon. The business judgment rule lets management take business risks without needing to worry that they will suffer personal liability simply because some business risk does not pan out. Removing it would make managers timid and afraid to do anything different than their peers. Insurance companies would struggle to write policies and price risk if any ordinary business decision could result in liability. We also explained that without the…

I tried posting about something else this week, but there’s a gravitational force, so here’s bonus Tesla content.

Honestly, this is what I find interesting and unexpected:

Schwab Asset Management earlier this week pledged to back the pay proposal after a number of prominent retail shareholders said on social media that they would move funds out of brokerages that voted in opposition.

With the caveat that I am not exactly clear on what assets were involved, this is an interesting conundrum of fiduciary obligation and mutual fund voting.

On the one hand, shouldn’t funds vote the way the investors want? On the other, Tesla stans are not the only investors in the fund, and if Schwab believes the pay package is bad for the fund overall, shouldn’t those other investors be protected?

To wit: when adopting its voting choice program, BlackRock explicitly said it wouldn’t just delegate voting decisions to investors; instead, it had a fiduciary obligation to review the range of choices to decide they were all suitable, which is its justification for giving investors only a limited slate of pass through voting options.

But also – and, again, I’m not sure I’m clear on…

So I guess I wasn’t too far off in my previous post about the Pfizer/Novo Nordisk battle for Metsera; in fact, the case I mentioned was cited in Pfizer’s papers (though of course, Metsera disputes its relevance).

Here’s the thing: the legal ability of Metsera to terminate its deal with Pfizer, and enter into a new agreement, entirely depends on the application of the antitrust laws. Novo’s bid is unquestionably higher; the only difficulty is completion risk, given that it presents greater antitrust hurdles than Pfizer’s bid.

So, in one version of the story, there is no chance that regulators would approve the deal with Novo; therefore, it cannot constitute a superior offer. Moreover, Novo’s proposal to pay Metsera cash up front, skipping antitrust review, is itself a violation of the antitrust laws, and so Metsera cannot claim superiority solely due to that feature.

In another version of the story – the version that Metsera tells in its briefing to the Delaware Court of Chancery – Metsera was initially concerned about antitrust risk, which is why it accepted Pfizer’s bid over Novo’s higher one, but Novo has since been consulting with regulators and now is more confident there is…

Back to the bottomless well…

I’ve previously commented on the items up for a shareholder vote next week, Mike Levin and I recorded a Shareholder Primacy podcast about it, and I also spoke about it on Fordham’s Bite Sized Business Law podcast. The proposal that really has my attention is Proposal 3, which would amend Tesla’s 2019 stock compensation plan to do two things: First, to create a reserve of shares for the board to award Elon Musk to replace his 2018 pay package, if the Delaware Supreme Court affirms Chancellor McCormick’s rescission of that package. And second, to authorize Tesla shares to pay other employees, just as part of a normal stock compensation plan. One thing I highlighted on the Shareholder Primacy podcast – and has become a focus of objection by multiple shareholders – is that these two very different proposals are bundled together in a single vote to amend the 2019 compensation plan. That is, if you want to allow Tesla to pay its employees in stock, but you don’t want to restore Elon Musk’s 2018 pay package, there isn’t an option for that; you can have both, or neither.

Is that ……

Here is Novo Nordisk’s bid for Metsera. Because the deal requires prolonged regulatory clearance, Novo will buy nonvoting convertible shares from Metsera, with the cash to be paid as a dividend to Metsera’s shareholders now. Since the convertibles are nonvoting, no regulatory preclearance is required, and cash gets to Metsera right away. Before NN can convert to voting and take over the company, it has to obtain regulatory clearance.

Which sounds fine except for how this looks a lot like what DOJ called an evasion of antitrust law just a few years ago with Toshiba and Canon.

Here, the parties might argue that this structure is not solely to evade preclearance, as it was there – it’s also to give assurances to Metsera in the context of a contested takeover battle, and meet contractual requirements to qualify as a superior offer. 

Maybe that wins the day but it’s why, I guess, Pfizer says this is an “illusory” offer and Metsera may not terminate the current agreement.

If I’m getting this wrong, though, someone let me know so I can edit/delete and bury my shame. (Commenting doesn’t seem to work well here but feel free to email).