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After three decades of evolution of an analytical framework for judicial review of board decisions relating to merger and acquisition transactions, the Delaware courts have, in just the last few years, radically transformed M&A law.

While the foundational principle of Delaware corporate law has always been deference to the business judgment of independent boards of directors (reflected in the “business judgment rule”), the courts had applied a “heightened scrutiny,” and even an “entire fairness,” standard in the more difficult settings of M&A transactions. Those standards had, since the advent of “modern” M&A in the 1980s, set the stage for directors’ conduct when faced with a takeover bid or the negotiation and execution of a sale of the company. Now there has been a dramatic change of course—in the words of Vice Chancellor Slights, as reported in The M&A Lawyer, “a narrowing of the more exacting standards of review toward business judgment deference” in M&A matters in almost every scenario.

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