Last October two of my co-counsel and I chronicled the efforts of Delaware’s Court of Chancery to address the epidemic of deal litigation, and the fact that most of those cases end with disclosure-only settlements. We praised the court not only for taking on this issue, but for the elegant manner in which it approached changing the rules of the game. There remains, however, a little more work to be done, at least from the defense point of view.
Over the course of several months, Chancellor Bouchard and his vice chancellors have announced loudly and clearly that it will no longer be business as usual in Delaware with regard to disclosure-only settlements in deal cases. During the fairness hearing in Assad v. World Energy Solutions (in which my co-authors and I represented the Special Committee), Bouchard noted that his job was to “decide about class certification . . . [and] whether the settlement should be approved . . . and consider an application for attorneys’ fees.” Class certification was easy, but the rest was not.
