City of Miami General Employees’ and Sanitation Employees’ Retirement Trust v. Comstock, C.A. No. 9980-CB (Del. Ch. August 24, 2016)

The Court of Chancery applied the business judgment rule to dismiss the plaintiff’s post-closing monetary damages claims in connection with a challenged merger that was approved by a majority of disinterested, informed, and uncoerced shareholders. The Court stated: “[P]laintiff’s claims for post-closing damages against [defendant] directors and officers are subject to the business judgment presumption under the Delaware Supreme Court’s decision in Corwin v. KKR Financial Holdings LLC because of the legal effect of the stockholder vote, and that judicial review of plaintiff’s fiduciary duty claims (and related aiding and abetting claims) thus ends there.”

The Court of Chancery analyzed and refined the same principle in a separate opinion published one day after the court’s decision in the case above. In Larkin v. Shah, former shareholders of Auspex Pharmaceuticals, Inc. filed suit for post-closing monetary damages in connection with the 2015 acquisition of Auspex (the “Merger”), which was approved by a majority of Auspex’s disinterested shareholders. The plaintiffs alleged that the directors of Auspex breached their fiduciary duties by entering into the first all-cash deal they could land without regard for other superior offers. They contended that the Corwin decision, which held that the business judgment rule applies to “a transaction not subject to the entire fairness standard, that is approved by a fully informed, uncoerced vote of the disinterested stockholders,” did not apply to any transactions which are subject to entire fairness. The Court disagreed and found that the only transactions subject to entire fairness that cannot be cleansed by proper stockholder approval are those involving a conflicted controller. The Court concluded that because the Merger did not involve a conflicted controller, the Corwin decision applied and the business judgment rule was the appropriate standard of review.

BOTTOM LINE: The business judgment standard applies to transactions subject to enhanced scrutiny if a majority of disinterested, uncoerced stockholders approve the transaction unless the challenged transaction involves a conflicted controller. This application of the rule may not be rebutted. Therefore, if a Board of Directors discloses all information related to the conflict to minority shareholders and they approve the transaction anyway, the plaintiff-shareholders seeking relief must overcome the steep burden of the business judgment rule. The only practical way the plaintiffs will be able to accomplish this is by pleading facts showing the stockholder vote was not informed, was coerced, or that a conflicted controller was in fact at issue.