Standard of Review_Unocal

2017-01-06 19:33:21   0  举报

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在Unocal案件中，审查标准被确定为“明显疏忽”。这意味着法院需要评估被告是否具有合理的注意义务，以及他们是否未能履行这些义务。如果被告未能以合理的方式行事，并且这种疏忽是明显的，那么法院可能会认定被告有过失。然而，这并不意味着被告必须预见到所有的可能结果，或者采取所有可能的预防措施。只要他们的行为低于一个合理和谨慎的人在类似情况下所应采取的标准，就可以认定存在过失。

作者其他创作

大纲/内容

beyond Unocal

Williams v. Geier: recommendation from Board and Voting of SH shall be evaluated respectively (Williams v. Geier)

Board: Unocal inapplicable, but BJR

Amendment to Charter which is NOT unilater action (but further requires Sh approval)

no conflict of interest presents (no need to require MOM)

Unocal applies only when the measure adopted is "defensive" (which refers to question of the scope of "threat")

Simple particularization of the general requirement welfare of the corp., other than the self-interest of the D, is served though adopting the measure at issue: even extending "threat" so meld that includes scenario of two tier bid, with a backend merger offering a fair price (AC Acquisition)

No longer limited to a specific threat (Unocal), but extended to future threat in general (Moran); However, both cases are responsive to the hostile takover

Threat only only to maintainance of the corporate policy, but to original merger transaction (Omnicare & Time)

Unocal

Enhanced Duty under Unocal (reasonably related to threat posed)

(1) Nature of the threat

Factors enumerated under Unocal

(a) inadequacy of price offered

the quality of securities being offered in the exchange: Junk bond (Unocal)

just say no, in order to pursue "long term value", even if the price including a premium (that is, Short term value lower than the long term value ) (Time)

subject to the exception in Relvon context (having decided to sell T) (Relvon)

Two tier bids - structural coercion (AC Aquisition)

(b) nature and timing of offer

(d) in fact on constituencies other than shareholders

(e) risk of nonconsummation

(f) basic SH interest at stake, including short term value pruchaser

(2) Effect of the adopted measures on the corp. (coercive or preclusive)

BJR (Cheff v. Maths)

Good Faith - process oriented(reasonable investigation): Enhanced by Majority constituted by ID + relying on independent 3rd party opinion (Unocal)

When conflicted D involves, Ct less tolerant (Van Goarkom)