presumptive standard in Delaware

2023Co. v. Administratia Asigurarilor De Stat, 289 F.3d 434, 438 (6th Cir. 2002) (finding judicial conduct waiver because movant’s failed to raise arbitration until its motion to vacate a default judgment); Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390 (7th Cir. 1995) (“[A]n election to proceed before a nonarbitral tribunal for the resolution of a contractual dispute is a presumptive waiver of the right to arbitrate.”); Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007) (holding a party may waive its right to arbitrate by engaging in litiga

2023Co. v. Administratia Asigurarilor De Stat, 289 F.3d 434, 438 (6th Cir. 2002) (finding judicial conduct waiver because movant’s failed to raise arbitration until its motion to vacate a default judgment); Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390 (7th Cir. 1995) (“[A]n election to proceed before a nonarbitral tribunal for the resolution of a contractual dispute is a presumptive waiver of the right to arbitrate.”); Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007) (holding a party may waive its right to arbitrate by engaging in litiga

2023Servs., LLC, 59 F.4th 457, 471 (9th Cir. 2023) (finding waiver satisfied when choosing to litigate in federal court rather than engage in arbitration); BOSCA, Inc. v. Bd. Of Cty.

2023Servs., LLC, 59 F.4th 457, 471 (9th Cir. 2023) (finding waiver satisfied when choosing to litigate in federal court rather than engage in arbitration); BOSCA, Inc. v. Bd. Of Cty.

2023Co. v. Administratia Asigurarilor De Stat, 289 F.3d 434, 438 (6th Cir. 2002) (finding judicial conduct waiver because movant’s failed to raise arbitration until its motion to vacate a default judgment); Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390 (7th Cir. 1995) (“[A]n election to proceed before a nonarbitral tribunal for the resolution of a contractual dispute is a presumptive waiver of the right to arbitrate.”); Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007) (holding a party may waive its right to arbitrate by engaging in litiga

2023Co. v. Administratia Asigurarilor De Stat, 289 F.3d 434, 438 (6th Cir. 2002) (finding judicial conduct waiver because movant’s failed to raise arbitration until its motion to vacate a default judgment); Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390 (7th Cir. 1995) (“[A]n election to proceed before a nonarbitral tribunal for the resolution of a contractual dispute is a presumptive waiver of the right to arbitrate.”); Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007) (holding a party may waive its right to arbitrate by engaging in litiga

2023Co. v. Administratia Asigurarilor De Stat, 289 F.3d 434, 438 (6th Cir. 2002) (finding judicial conduct waiver because movant’s failed to raise arbitration until its motion to vacate a default judgment); Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390 (7th Cir. 1995) (“[A]n election to proceed before a nonarbitral tribunal for the resolution of a contractual dispute is a presumptive waiver of the right to arbitrate.”); Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007) (holding a party may waive its right to arbitrate by engaging in litiga

2023Co. v. Administratia Asigurarilor De Stat, 289 F.3d 434, 438 (6th Cir. 2002) (finding judicial conduct waiver because movant’s failed to raise arbitration until its motion to vacate a default judgment); Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390 (7th Cir. 1995) (“[A]n election to proceed before a nonarbitral tribunal for the resolution of a contractual dispute is a presumptive waiver of the right to arbitrate.”); Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007) (holding a party may waive its right to arbitrate by engaging in litiga

2025In Bershad, we held that “a stockholder is under no duty to sell its holdings in a corporation, even if it is a majority shareholder, merely because the sale would profit the minority.” Berhsad, 535 A.2d at 845 . 39 that self-interested deal to the detriment of minority stockholders.” 166 As we noted in Match, “[e]ntire fairness is the standard of review in transactions between a controlled corporation and a controlling stockholder when the controlling stockholder receives a non- ratable benefit.” 167 Accordingly, “where a controlling stockholder transacts with the controlled corporation and r

2024For instance, during contested director elections and other contests for control, directors might be improperly 90 In re Tesla Motors, Inc. S’holder Litig., 298 A.3d 667 , 700 (Del. 2023) (citing Weinberger v. UOP, Inc., 457 A.2d 701, 711 (Del. 1983)) [hereinafter In re Tesla Motors]. 91 Id. 92 Id. 22 motivated to preserve their positions rather than to act in the best interest of the corporation and its stockholders.93 Recognizing the inherent potential for conflicts, a reviewing court will apply an enhanced scrutiny standard of review.94 And where a controlling stockholder transacts with the

2024For instance, during contested director elections and other contests for control, directors might be improperly 90 In re Tesla Motors, Inc. S’holder Litig., 298 A.3d 667 , 700 (Del. 2023) (citing Weinberger v. UOP, Inc., 457 A.2d 701, 711 (Del. 1983)) [hereinafter In re Tesla Motors]. 91 Id. 92 Id. 22 motivated to preserve their positions rather than to act in the best interest of the corporation and its stockholders.93 Recognizing the inherent potential for conflicts, a reviewing court will apply an enhanced scrutiny standard of review.94 And where a controlling stockholder transacts with the

2024In Flood, we clarified that “[t]o avoid one of Lynch’s adverse consequences—using a majority-of-the-minority vote as a chit in economic negotiations with a Special Committee—MFW reviews transactions under the favorable business judgment rule if ‘these two protections are established up-front.’” 195 A.3d at 762 (quoting MFW, 88 A.3d at 644 ) (emphasis added)). 96 298 A.3d 667 (Del. 2023). 97 Id. at 708 (quoting MFW, 88 A.3d at 646 (emphasis in original)). 98 Id. (quoting In re Walt Disney Co. Derivative Litig., 906 A.2d 27, 74 (Del. 2006) (internal quotation marks and citation omitted)). 99 202

2024As the Delaware Supreme Court recently reaffirmed in Match, “entire fairness is the presumptive standard of review” for conflicted-controller transactions.153 And the maximum effect of stockholder ratification in a conflicted-controller transaction is to shift the burden of proving 149 Post-Trial Op., 310 A.3d at 497–513. 150 See Match, 315 A.3d at 467 (discussing coercion risk); see also Kahn v. Lynch Comm. Sys., Inc., 638 A.2d 1110 , 1116–17 (Del. 1994). 151 See Match, 315 A.3d at 467 (discussing bypass risk); see also Lawrence A, Hamermesh, Jack B.

2024For instance, during contested director elections and other contests for control, directors might be improperly 90 In re Tesla Motors, Inc. S’holder Litig., 298 A.3d 667 , 700 (Del. 2023) (citing Weinberger v. UOP, Inc., 457 A.2d 701, 711 (Del. 1983)) [hereinafter In re Tesla Motors]. 91 Id. 92 Id. 22 motivated to preserve their positions rather than to act in the best interest of the corporation and its stockholders.93 Recognizing the inherent potential for conflicts, a reviewing court will apply an enhanced scrutiny standard of review.94 And where a controlling stockholder transacts with the

2024For instance, during contested director elections and other contests for control, directors might be improperly 90 In re Tesla Motors, Inc. S’holder Litig., 298 A.3d 667 , 700 (Del. 2023) (citing Weinberger v. UOP, Inc., 457 A.2d 701, 711 (Del. 1983)) [hereinafter In re Tesla Motors]. 91 Id. 92 Id. 22 motivated to preserve their positions rather than to act in the best interest of the corporation and its stockholders.93 Recognizing the inherent potential for conflicts, a reviewing court will apply an enhanced scrutiny standard of review.94 And where a controlling stockholder transacts with the

2024Mining Corp. v. Theriault, 51 A.3d 1213, 1239 (Del. 2012).

2024Under Delaware’s business judgment rule, “‘the board’s decision will be upheld unless it cannot be attributed to any rational business purpose.’”98 In our most recent decision in In re Match Grp., Inc. Derivative Litig.,99 we held that where a controlling stockholder stood on both sides of a transaction with a controlled corporation and received a non-ratable benefit, entire fairness was the presumptive standard of review.100 Here, Appellants assert that MFW “cleansing” is unavailable because the 95 MFW, 88 A.3d at 645 (emphasis in original).

2024In Flood, we clarified that “[t]o avoid one of Lynch’s adverse consequences—using a majority-of-the-minority vote as a chit in economic negotiations with a Special Committee—MFW reviews transactions under the favorable business judgment rule if ‘these two protections are established up-front.’” 195 A.3d at 762 (quoting MFW, 88 A.3d at 644 ) (emphasis added)). 96 298 A.3d 667 (Del. 2023). 97 Id. at 708 (quoting MFW, 88 A.3d at 646 (emphasis in original)). 98 Id. (quoting In re Walt Disney Co. Derivative Litig., 906 A.2d 27, 74 (Del. 2006) (internal quotation marks and citation omitted)). 99 202

1995Id.; see also Hamilton v. Verdow, 414 A.2d at 925 (citing Senate Select Committee on Pres.