M&A Delaware Update: Material Adverse Effect Post-Akorn, Standard of Deal Review, Appraisal Rights, D&O Fiduciary Duties

Implications of Recent Case Law for Planning, Negotiating, and Drafting Deal Documents

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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, February 20, 2020

Recorded event now available

or call 1-800-926-7926
Course Materials

This CLE course will discuss the implications of 2018 and 2019 Delaware court decisions for current and future M&A practice. The panel will discuss the anticipated impact of recent Delaware court rulings on the standard of review in the third-party merger context, appraisal rights actions, and more.


The Delaware courts issued several significant rulings in 2018 and 2019 addressing essential issues for M&A practice. Recent decisions continue to clarify the appropriate standard of review in M&A transactions in the wake of Corwin v. KKR Financial Holdings L.L.C.

Appraisal rights actions and D&O fiduciary duties also continue to be the subject of Delaware decisions. In the Aruba case, the Delaware Supreme Court clarified the extent to which the court of chancery may rely on stock trading prices when determining fair value in an appraisal action. In Marchand v. Barnhill, the Delaware Supreme Court reversed the court of chancery's dismissal of a fiduciary duty claim, providing guidance on the role of the board of directors in overseeing risk management.

In a first-of-its-kind decision, the Delaware Chancery Court ruled that Fresenius Kabi AG was not required to close its $4.3 billion merger agreement with Akorn Inc. because Akorn suffered a material adverse effect. The Delaware Supreme Court affirmed the ruling in December 2018. Other significant decisions include the Delaware Supreme Court's finding of a breach of fiduciary duty by an activist investor, and the chancery court's strict enforcement of an "end date" provision in a merger agreement.

Listen as our panel of experienced M&A attorneys reviews critical Delaware court decisions issued during 2018 and 2019 and their impact on M&A practice. The panel will explain legal and practical implications for deal counsel negotiating and litigating deals in 2020 and beyond.



  1. Key 2018 and 2019 Delaware rulings
    1. Standards for deal review
    2. Appraisal rights: Aruba
    3. D&O fiduciary duties
    4. Material adverse effect: Akorn, Boston Scientific
    5. Breach of fiduciary duty by an activist investor
    6. Enforcement of "end date" in merger agreement: Rent-a-Center
    7. Private company merger issues
  2. Implications and best practices for M&A transactional attorneys and litigators


The panel will review these and other highly relevant issues:

  • How have the Delaware courts addressed the standard for deal review in recent cases?
  • How will the 2018 and 2019 Delaware decisions reshape the way deals are structured and litigated?
  • What are best practices for M&A transactional attorneys and litigators in 2019 and beyond?


Allen, Michael D.
Michael D. Allen

Richards Layton & Finger

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

Hirzel, Samuel
Samuel T. Hirzel

Heyman Enerio Gattuso & Hirzel

Mr. Hirzel specializes in litigation in the Court of Chancery of the state of Delaware as both lead and Delaware...  |  Read More

Stottmann, Ryan
Ryan D. Stottmann

Morris Nichols Arsht & Tunnell

Mr. Ryan’s litigation practice focuses on corporate and commercial litigation in the Delaware Court of Chancery...  |  Read More

Access Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include course handouts.

To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video