Over the last several years, Delaware corporate law practitioners have traced numerous legal developments that dramatically reduced the injunction practice that dominated M&A litigation in Delaware for nearly three decades, changing the development of Delaware disclosure law jurisprudence. Corporate law practitioners formerly benefited from a near-constant stream of judicial rulings resolving motions for expedited proceedings, expedited discovery and preliminary injunctions that focused, in part, on disclosures issued to stockholders in connection with mergers and other transactions. Those decisions generated a quick-paced, iterative body of case law that continually updated practitioners and transaction participants on the court’s current thinking on disclosures, and enabled the court to address disclosures to stockholders on a “real-time” basis.
As injunction practice has declined, corporate disclosure law in Delaware is evolving at a slower pace, primarily through application of the Delaware Supreme Court’s decisions in Corwin v. KKR Financial Holdings, in the absence of a controlling stockholder, and Kahn v. M&F Worldwide (MFW), when a controlling stockholder is present. These decisions, typically issued months or even years after a transaction has closed, affect the relevant standard of review but do not afford transaction participants the opportunity to correct disclosure deficiencies before a stockholder vote.
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