Director Duties in M&A Transactions: Navigating Evolving Standards of Review Under Delaware Law

When Do Delaware Courts Apply the Business Judgment Standard vs. the Entire Fairness Standard in Evaluating Fiduciary Duty Compliance?

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, June 1, 2016

Recorded event now available

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Program Materials

This CLE webinar will review the latest Delaware law developments regarding the fiduciary duties corporate directors and officers owe stockholders when considering or conducting an M&A transaction. The panel will discuss recent Delaware court decisions and their implications for director and officer liability, exculpation from liability under Delaware Section 102(b)(7), and evolving standards of review.


Decisions issued by Delaware courts in recent years serve as an important reminder to deal counsel of the scrutiny with which courts will review director and officer compliance with fiduciary duties owed to stockholders when contemplating or conducting an M&A transaction. For example, the 2014 Chen v. Howard-Anderson decision held that directors and officers could be found personally liable for breach of the duty of loyalty if they allowed an improper motive to influence their decisions during an M&A sale process.

Delaware courts apply several different standards of review when deciding if directors complied with their fiduciary duties during an M&A transaction. The business judgment standard and the entire fairness standard are the most common standards applied. The standard applied is generally dependent on the facts of the case and directly impacts the outcome of the case.

Listen as our authoritative panel examines the latest developments in Delaware fiduciary duty law, §102(b)(7) exculpatory provisions, and evolving standards of review as they relate to the duties directors and officers owe stockholders when conducting the sale of a company.



  1. Evolving standards of review
  2. Factors to consider in a sales process
    1. Financial adviser risks
    2. Conflicts of interest
    3. Proxy statement disclosures
  3. Officer liability


The panel will review these and other key issues:

  • How should counsel advise directors regarding their fiduciary duties and the evolving standards of review in connection with M&A deals?
  • What disclosures must be made by directors to shareholders during the sale process?
  • When and how can §102(b)(7) exculpatory provisions be used to protect directors from liability for breach of fiduciary duty?


Gardner F. Davis
Gardner F. Davis

Foley & Lardner

Mr. Davis focuses his practice on corporate law. He advises boards of directors and special committees in regard to...  |  Read More

Michael D. Allen
Michael D. Allen

Richards Layton & Finger

Mr. Allen counsels corporations, officers, directors, boards and stockholders on transactional and advisory...  |  Read More

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