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Corporate Policy and the Coherence of Delaware Takeover Law
Richard E. Kihlstrom, The Wharton School, University of Pennsylvania
Michael L. Wachter, University of Pennsylvania Law School
ABSTRACT:
This Article presents a model that can be used to explain key elements of Delaware takeover law. By incorporating corporate policy as a key variable in the model, Delaware law’s management discretion rule can be shown to be best suited for maximizing the value of the corporation and the shareholders’ interest under a set of reasonable assumptions. By allowing for occasional market mispricing and the agency costs associated with managing to the market, we demonstrate that a shareholder choice regime would likely lead to suboptimal investment decisions. In our model, managers are assumed to have better information regarding alternative corporate policies than shareholders but may, in certain circumstances, act to maximize share price in order to insulate themselves from hostile tender offers, even at the expense of maximizing firm value. This theory explains the result in Paramount v. Time, and also why shareholder choice is allowed in limited instances that implicate Revlon duties such as Interco and Paramount v. QVC.
SUGGESTED CITATION:
Richard E. Kihlstrom and Michael L. Wachter,
"Corporate Policy and the Coherence of Delaware Takeover Law"
(September 1, 2005).
University of Pennsylvania Law School.
Scholarship at Penn Law.
Paper 75.
http://lsr.nellco.org/upenn/wps/papers/75
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