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Tulane's 35th Annual Corporate Law Institute
Day One is in the Books
So, if you know what’s what in corporate law, you know what it means when someone asks this week: “Are you at Tulane?” or basically, when anyone asks you, “Are you going to be at Tulane?” anytime from around Fall to Spring … or anytime of year, really … you’ve got sufficient context to know what they mean. They would be referring to the upcoming year’s Annual Tulane Corporate Law Institute, this year being the 35th Annual, happening on March 23rd and 24th.
(Don’t even get me started about how confusing the Tulane mascot situation is — I had to watch an entire video and I still do not actually understand but I do feel vibes that some contingent may rail against my reductionist take back to Pete the Pelican in the above artistic rendition. Allow me some stylistic leniency, I beg. Getting AI to render an “Angry Wave” was not something that I could accomplish without several days’ worth of toil and trouble.)
Anyhoo, today was Day 1, and it was a banger. While many of you may have clicked your way through for CLE credit, or been there in person (jealous!), I thought everyone could enjoy some highlights of the best moments in my humble estimation. I’m sure I missed some things, as — since you may have heard — there’s still a publication to run and daily deadlines are a cruel mistress who never sleeps. So while I apologize profusely to all the people who said incredibly wise things that I did not explicitly capture here, I hope everyone can find a little something to enjoy from some of my own personal favorite tidbits from the day.
Instead of trying to do something so trite as to rank the presentations or put things in any other than temporal order, the day’s schedule is untouched from its calendar-based organization, which also helps give those of you not in attendance some idea of what the day was like. I’ve included links to speaker bios where available. Lunch, dinner, and drinks were omitted. If you want to send me the juicy bits I missed therein, you can send them to firstname.lastname@example.org. Or text me if you know how.
8:00 - 8:15am
The Chief Justice introduced the bleary-eyed morning crowd to the alleged New Orleans-ism “where y’at” — I will caution you that I did some research to follow-up on this and considered linking to Future’s Where Ya At feat. Drake, which is incredibly NSFW (or for playing at any conference-related activities), so if you want it, you’ll have to go and find it yourself. It’s not nearly as wholesome as the “where y’at, darling” yarn the Chief Justice spun this morning, but it’s probably a little more accurate to the street culture of real world NOLA.
8:15 - 8:45am
M&A Outlook – An Investment Banker’s Perspective
Anu Aiyengar, JP Morgan, New York, NY
This presentation was bleak. Put the M&A folks on whatever the culturally appropriate term is for SW-kind of bleak. But also … with like a nice shiny JP Morgan finish on it. So it left me feeling both incredibly optimistic about capitalism’s ability to win and insanely depressed about the prospects for the real economy to the extent such a thing still exists. Luckily I didn’t have to think about it for too long because former Chief Justice Strine was about to take the stage and nothing distracts one from the bleakness of existence under terminal-stage capitalism like Leo Strine’s intensely-lovable stochastic combination of pococurantism, joie de vivre, and passion for corporate law.
8:45 - 10:15am
Hot Topics in M&A Practice
Rita O’Neill, Lead Panelist, Sullivan & Cromwell LLP, Los Angeles, CA
Ted Yu, Associate Director, Specialized Policy and Disclosure, Division of Corporation Finance, U.S. Securities and Exchange Commission, Washington, DC
Scott Barshay, Paul Weiss, New York, NY
Audra Cohen, Sullivan & Cromwell LLP, New York, NY
Leo Strine, Jr., Wachtell, Lipton, Rosen, and Katz
(Ret. Chief Justice, Delaware Supreme Court), New York, NY
Anu Aiyengar, JP Morgan, New York, NY
Former [insert all the honorifics here] All Things Honorable Strine, Jr. was bound to be my focus here, if only because for reasons, I’ve only had the opportunity to see him on live panels a couple of times since I took his class a decade ago, and boy, I’ve missed that energy. Honestly, the first part of this panel took on the big sad energy of the lead-in, which was very “omg this market”.
A couple of inside baseball takeaways: staple financing and club deals sound like they are making a comeback. (“Staple financing is available only when it's not needed. Staples financing is never available when it is needed.” — Leo Strine, Jr.).
10:30 - 11:30am
Celebrating 35 Years of Tulane Corporate Law Institute – and the Delaware Case Law that Has Shaped the Institute
Andre Bouchard, Lead Panelist, Paul Weiss, LLP
(Ret. Chancellor, Delaware Court of Chancery), Wilmington, DE
Chief Justice Collins Seitz, Jr., Delaware Supreme Court, Wilmington, DE Chancellor Kathaleen McCormick, Delaware Court of Chancery, Wilmington, DE
One of my two favorite panels, because of course, but also the one with the absolute keynote GoT quote from the Chancellor.
I’m somewhat big sad this quote did not make it into the Mindbody decision, because herein Chancellor McCormick gives guidance to outside directors and independent directors, explaining that they “need to take hold of the sales process, and do so in a really robust and meaningful way, [especially if the CEO is] new to a sales process. Then they need to have someone like Ygritte in the Game of Thrones series, who looked at Jon Snow and said: ‘You know nothing, Jon Snow.’ They need to have advisors who are chronically reminding them that even really wise, esteemed, good, smart people might be new to the area of the sales process and they need continual reminders of how to dig deep and manage the conflicts that arise.”
(Note to CEOs, get yourself an Ygritte. Or, as Kyle translated into Walking Dead-ese, as Abraham said: “There is a vast ocean of [ish] that you people don't know [ish] about.” So get yourself someone who knows ish about ish.)
Also on this panel, the Chancellor answers a question about her history with busted deal litigation by saying that “it is long and it could probably be the dedicated topic for multiple therapy sessions,” because she is both brilliant and hilarious.
Following up, she continued: “I think that Delaware does have a unique role to play in this space. We're known to be a contractarian place. We'll speak more about this on a panel later today. But it's the kind of place where the Court will enforce the expectations of the parties and the market presumes that we will do so. And it's my belief that this expectation establishes a set of negotiating norms for M&A parties and that is beneficial to society as a whole — that the concept of “a deal is a deal” has true meaning in Delaware and that meaning carries forward in multiple other venues and spaces and discussions. So, I think that's the role we have to play in the the bigger picture, in what we continue to do and strive to do. To do that meaningfully, we have to do it fast, and that can be really painful for all involved.”
With respect to Twitter’s closing, former Chancellor Bouchard asked her:
“Do you think that the fact that the law had evolved and that — sort of the rules of the road had been defined more clearly — had something to do with that?”
The Chancellor replied:
“As you know, the parties amicably … well, that might be a strong word … they … resolved the dispute short of requiring a decision from me … so they certainly might be more qualified than me to answer the question of what really happened. But I like to think that, certainly the risk of litigation in those sorts of cases, you know, at least the parties who are negotiating resolutions are well aware of those risks.”
Former Chancellor Bouchard said of counsel who filed a motion for reargument (never mind at least three) in a highly-expedited case (as happened in the Twitter matter) “[O]f all things, can you imagine? In an expedite[d] case, anybody who thought that that motion would get granted probably ought to check out future practice aspirations, because that's unlikely to happen.”
apropos of nothing, I am reminded of this gem 🙃
I also will never forget: “A court makes rulings, not proposals for the parties to counter.” That line is etched in my brain.
Chief Justice Seitz and Chancellor McCormick later shared some genuinely warm interactions, explaining how much work they do together behind the scenes collaborating to make the Courts work — throughout COVID, throughout the recent incredible burdens placed on the courts (which CM called the “SPAC crisis”) and all the rest. The Chief Justice reiterated that “the thing [he is] most proud about is that no employee of the Delaware court system got sick and died from COVID on [his] watch” — noting that “we forget, I think, a little bit about how horrible it was for the people who died, but  we were able to navigate the Delaware court system and COVID pretty well” especially in light of how the Delaware Court of Chancery never shut down during COVID, unlike most courts around the country that shut down at least for some period of time during the pandemic.
The panel discussed the recent pronouncements about the Section 111 Cross-Designations Order, which we have been going on about for several weeks now. (On an undoubtedly vain and egotistical note, I’ll say that nothing discussed today was something we haven’t been blathering on about across the inter-webs for the past several weeks or months, so that was very rewarding on a personal level, even though it was still enlightening to hear all these awesome people share their various perspectives on the many topics.)
The hidden reveal on this panel was a quiet one from the Chancellor that: “[w]e do anticipate sending discrete categories of what [have] traditionally been thought of as corporate cases to [the Masters in Chancery] starting next month, including §220 disputes and the like.” It seems like there will be immediate concerns with how to handle the timing concerns in such summary proceedings, given the inevitable (if not annoying and usually unwarranted) filing of exceptions that will likely be lodged in every. single. case. I’m sure she’s got a plan for that.™️ Speaking of which, if you have a plan for that, apply to be her Chief Staff Attorney and I’ll be super jelly because it’s taking all of my willpower not to hop on that job opening. Do you think she’d let me moonlight? 🥲
11:30 - 1:00pm
William Lafferty, Lead Panelist, Morris, Nichols, Arsht & Tunnell LLP, Wilmington
Chief Justice Collins Seitz, Jr., Delaware Supreme Court, Wilmington, DE
Elena Norman, Young Conaway Stargatt & Taylor LLP, Wilmington, DE
Kevin Shannon, Potter Anderson Corroon LLP, Wilmington, DE
Corinne Elise Amato, Prickett, Jones & Elliott, PA, Wilmington, DE
Scott Luftglass, Fried, Frank, Harris, Shriver & Jacobson LLP, New York, NY
Aside from hearing about Bill Lafferty almost wrecking his car (I believe unrelated to his arm being in a sling) while his son read him Vice Chancellor Laster’s letter about Monday’s § 242 hearing, this panel walked through a lot of the SPAC-a-palooza / Boxed history, then did a Caremark review — mostly focusing on the AmerisourceBergen and McDonald’s opinions from Vice Chancellor Laster, then went on to some MFW creep and a touched on some of their planned content regarding entire fairness. The materials for the this panel provide sufficient fodder for a couple of days’ worth of deep discussion — if anyone wants to spin-off another conference, I’m game. My notes could spawn a hundred law review articles.
2:45 - 4:00pm
The Institutional Role of the Delaware Courts in Resolving Business Disputes
William Savitt, Lead Panelist, Wachtell, Lipton, Rosen, and Katz, New York, NY Chancellor Kathaleen McCormick, Delaware Court of Chancery, Wilmington, DE Vice Chancellor Lori Will, Delaware Court of Chancery, Wilmington, DE
Professor Ann Lipton, Tulane University Law School, New Orleans, LA
Joseph Slights III, Wilson Sonsini Goodrich & Rosati, Wilmington, DE
Liz Hoffman, Semafor
There were lots of great takeaways from this panel but my biggest one the impeccably dry wit of Bill Savitt, which … I feel like people don’t even have time to grok … or maybe they just don’t feel as compelled to [literally] LOL like they do with judges on the panel when he says things like this absolutely deadpan: “I would say that … nothing's perfect, but [Delaware] is unlike any court system that we've encountered in our firm, and it does allow the dispensation of justice in a way that's new and unusual and, or unusual anyway, in its expedition and its unerring accuracy, when it gets to the result that we're arguing for.” The best part is that one hundred percent if you laughed at the joke, he would look at you like you were offending him because his advocacy skills are 💯.
Also, former Vice Chancellor Slights made a comment about what makes Delaware lawyers special: “Speaking of judicial assumptions, there is an assumption that the system will tolerate the burdens, so we move fast. And yet the judges don't think twice that the lawyers will be able to make that happen. And the reason that assumption is well founded is because of the Delaware lawyers.” It reminded me of this little smackdown informed by that exact assumption by the Chancellor during the Twitter litigation, although it was applicable to every lawyer in the Courthouse that day.
Also, just amazing in hindsight how clear Chancellor McCormick was all the way back on July 19, 2022 with her communications about the case:
And it still took him three months and untold millions of dollars in litigation fees to close the ^&*! deal. ::breathe:: It’s over. /endselfsoothingroutine
Ok, where was I?
Speaking of clear thinking on complex issues, Vice Chancellor Will had the opportunity to preview some of her thoughts about the contractarian nature of Delaware, which was echoing various similar mentions by the Chancellor throughout the day, but fleshing out some specific thoughts on best efforts provisions.
[Delaware is] a contractarian jurisdiction. We're going to start with the plain language of the agreement. And the expectation, as Bill [Savitt] said, is that the deal is going to close and the obligations under the contract are going to be enforced.
When it comes to best efforts provisions, there's some nuance there. These are inherently vague clauses, and regardless of the hierarchy — whether we're in “best efforts” or “reasonable efforts” or “commercially reasonable efforts” — there's a reasonableness overlay that the court will apply. But it requires some equitable judging and careful lawyering because the judge ultimately has to substitute her own view on what reasonable efforts mean for perhaps what the parties intended.
Again, looking at that plain language, I'd say one of the lessons over the past few years, after the busted deal wave that we all dealt with, is that these provisions have real teeth. The Court will enforce them, and they should be used with great care by contracting parties.
There is too much more in my notes from the rest of this panel — Liz, Ann, et al. … I’m going to save the rest of today to include with tomorrow’s panels for a subsequent post.
But I will mention now, there is an additional third day on Saturday — the Tulane Corporate and Securities Law Roundtable, to which you are invited even if you are gen pop, and it’s free! Here’s the official invite:
Come join the Tulane Corporate and Securities Law Roundtable on Saturday, March 25th The event is open to the public, free to attend, and is at Tulane Law School!
Rockstars like Vice Chancellor Lori Will, Professors Ann Lipton and Eric Talley and many more will be presenting. It will be amazing. I don’t even think it will be live-streamed, so you will get to see it and I won’t, if you decide to attend. There’s even a final session called “The Obligatory Twitter v. Musk Panel”.