Person:

Subramanian, Guhan

Historically, Delaware corporate law provided different standards of judicial review for buyouts by controlling shareholders (also known as “freezeouts”). The standards were based on what transactional form was used: deferential business judgment review for freezeouts executed as tender offers and stringent “entire fairness” review for transactions structured as mergers. Subramanian (2005), Subramanian (2007), and Restrepo (2013) provide doctrinal and empirical evidence that (1) transactional planners responded to these differences in standards of judicial review; (2) these differences in judicial scrutiny created differences in outcomes for the minority shareholders; and (3) differences in outcomes created a social welfare loss, not just a wealth transfer in a series of important decisions, Delaware law has migrated toward a unified approach to freezeouts regardless of transactional form. In this Article we present empirical evidence on all freezeouts of Delaware targets during this period of doctrinal evolution. In general, we find that deal outcomes converged after the Delaware Chancery Court’s decision in In re Cox Communications, Inc. Shareholders Litigation. Our findings suggest that: (1) transactional planners seem to respond to even dicta in the Delaware case law; and (2) the social welfare loss identified in Subramanian (2005) seems no longer to be present. This result in turn suggests that the Delaware Supreme Court seems to have adopted the correct policy by endorsing the unified approach for merger freezeouts in Kahn v. M&F Worldwide Corp., and moreover, that the court should also explicitly endorse this approach in the context of tender offer freezeouts when presented with such facts.

Since 2011, the UK has prohibited all deal protections—including termination fees—in M&A deals. Prior to 2011, the UK permitted termination fees up to 1% of deal value and there was no prohibition on other protection devices. We examine the effect of this regulatory change on deal volumes, the incidence of competing offers, deal jumping rates, deal premiums, and completion rates in the UK, relative to the other European G-10 countries. We find that M&A deal volumes in the UK declined significantly in the aftermath of the 2011 Reforms, relative to deal volumes in the European G-10 countries. We find no countervailing benefits to target shareholders in the form of higher deal premiums or more competing bids. Completion rates and deal jumping rates also remained unchanged. We estimate that the incidence-rate ratio of UK deals to non-UK deals after the reform was approximately 50% the incidence-rate ratio of UK deals to non-UK deals prior to the reform. In addition, we estimate USD 19.3 billion in lost deal volumes per quarter in the UK relative to the control group due to the 2011 Reforms, implying a quarterly loss of USD 3.2 billion for shareholders of UK companies. Our results suggest that deal protections provide an important social welfare benefit by facilitating the initiation of M&A deals.