An Antidote for the Poison Pill

by Lucian Bebchuk for The Harvard Law School Forum, February 24th, 2011.

In a major decision issued last week, William Chandler of Delaware’s Court of Chancery ruled that corporate boards may use a “poison pill”—a device designed to block shareholders from considering a takeover bid—for as long a period of time as the board deems warranted. Because Delaware law governs most U.S. publicly traded firms, the decision is important—and it represents a setback for investors and capital markets.

The ruling grew out of the epic battle between takeover target Airgas and bidder Air Products. Air Products made a takeover bid for Airgas in 2010, increased it several times, and kept it open until last week’s decision. Airgas’s directors argued that defeating the premium offer would prove, in the long run, to be in shareholders’ interests. As the Chancery Court stressed, however, the directors based their opinion solely on information publicly available to shareholders. Why should shareholders, who have powerful incentives to get it right, not be permitted to make their own choice between selling and staying independent?

Chancellor Chandler stated that he would have preferred to let shareholders make the choice at this stage, as they “know what they need to know . . . to make an informed decision.” But he felt that denying shareholders’ right to choose was required by previous Delaware cases, which recognized directors’ right to block offers out of concern that shareholders would accept them “in ignorance or a mistaken belief” concerning the value of remaining independent. (continue reading… )

 

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