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Washington and Lee Law Review - Volume 77:3


by David Carson, Christine Greene, Mark Grunewald, Howard Highland, Brianne Kleinert, Brian C. Murchison, Debbie Price, Sheryl Salm, and Joan Shaughnessy

A tribute to Professor Mary Z. Natkin, who served on the faculty of the Washington and Lee University School of Law from 1987 to 2020. Professor Natkin is also an alumna of W&L Law, having graduated with the Class of 1985.


by Benjamin P. Edwards

Investors, industry firms, and regulators all rely on vital public records to assess risk and evaluate securities industry personnel. Despite the information’s importance, an arbitration-facilitated expungement process now regularly deletes these public records. Often, these arbitrations recommend that public information be deleted without any true adversary ever providing any critical scrutiny to the requests. In essence, poorly informed arbitrators facilitate removing public information out of public databases. Interventions aimed at surfacing information may yield better informed decisions. Although similar problems have emerged in other contexts when adversarial systems break down, the expungement process to purge information about financial professionals provides a unique case study.

Multiple interventions may combine to more effectively surface information and generate better informed decisions. In quasi-ex parte proceedings, traditional attorney ethics rules must yield to a higher duty of candor. Yet adjudicators should not rely on duty alone. Adversarial scrutiny may emerge by designating an advocate to independently and critically engage in circumstances where no party has any real incentive to oppose an outcome. Ultimately, addressing adversarial failures may require a shift away from adversarial adjudication to a more regulatory framework.


by Jessica Erickson

Merger litigation has changed dramatically. Today, nearly every announcement of a significant merger sparks litigation, and these cases look quite different from merger cases in the past. These cases are now filed primarily outside of Delaware, they typically settle without shareholders receiving any financial consideration, and corporate boards now have far more ex ante power to shape these cases. Although these changes are often heralded as unprecedented, they are not. Over the past several decades, derivative suits experienced many of the same changes. This Article explores the similarities between the recent changes in merger litigation and the longer history of derivative suits. The trajectories of these lawsuits are not identical, but they nonetheless suggest larger lessons about shareholder litigation, including the predictable ways in which agency costs play out in the courtroom and at the settlement table. By uncovering the lost lessons of derivative suits, corporate law can finally tackle the deeper issues facing shareholder litigation.


by Jeffrey Manns and Robert Anderson

Incomplete contract theory recognizes that contracts cannot be comprehensive and that state law necessarily has to fill in gaps when conflicts arise. The more complex the transaction, the more that lawyers face practical constraints that force them to limit the scope of drafting and broadly rely on legal defaults and open-ended terms to plug holes and address contingencies. In theory Delaware law serves as lawyers’ preferred jurisdiction and forum for merger and acquisition (M&A) transactions and other high-end corporate deals because of the state’s superior default rules for corporate law and its judiciary’s expertise in discerning the “hypothetical bargain” of the parties.

This paper sets out to examine whether lawyers’ professed confidence in Delaware defaults actually shows up in the drafting of merger and acquisition agreements. Lawyers may base deals in Delaware law because of their familiarity with its provisions, or Delaware’s appeal may reflect the substantive adding of value in filling contractual gaps. Our premise is that the best proxy for examining lawyers’ reliance on a jurisdiction’s defaults is the extent of brevity in legal drafting, which is closely related to reliance on standards rather than rules. Incomplete contract theory predicts that reliance on defaults should broadly translate into implicit (and explicit) references to existing defaults that conserve time and space in drafting, especially through the use of parsimonious standards rather than prolix rules. To the extent to which comparable contracts grounded in different jurisdictions have systematic differences in length, this finding would serve as evidence that lawyers are placing greater reliance on the defaults of one jurisdiction compared to another.

In this paper we compare the length of public company merger and acquisition (M&A) agreements between Delaware transactions and those governed by the law of other jurisdictions. To the extent practitioners regard Delaware law as more comprehensive, more precise, or more settled (due to the Delaware General Corporation law, case law, or the judicial system) compared to other jurisdictions, then we would expect that Delaware M&A agreements would be more concise because of greater reliance on defaults and open-ended terms.

We found agreements governed by Delaware law are no shorter, and in fact are generally longer than agreements governed by the law of other states even when we accounted for a spectrum of control variables including the deal structure, the quality of law firms, deal complexity, and the size of the transaction. This finding held true even when we identified and controlled for the textual source of the precedent documents. Our results challenge the conventional wisdom about contracting parties’ placing greater reliance on Delaware law.

Our findings suggest that a gap exists between the Delaware legal system’s outsized reputation and the actual practice of lawyers in drafting M&A agreements who appear to place no more reliance on the defaults of Delaware law than on the defaults of other jurisdictions. This finding calls into question why Delaware’s statutory and judicial defaults do not appear to matter in the contracting context in which the Delaware difference compared to other states should be the most apparent. Lawyers’ confidence in Delaware may be genuine when it comes to steering incorporations and M&A litigation to Delaware. But if lawyers rely on the defaults of Delaware contract law no more (and perhaps less) in contract drafting than that of other jurisdictions, then it suggests that Delaware’s reputation for corporate law exceeds its substance. We conclude that the text is likely influenced far more by fortuitous events in the drafting process, such as the precedent chosen, than by the default rules of the jurisdiction.


by Christina M. Sautter

Most would agree that the Delaware courts are the leading jurists in the resolution of corporate conflicts, particularly in the Mergers & Acquisitions (M&A) context. Arguably a greater role that Delaware plays is that of a norm setter, both with respect to the expectations of management conduct in the M&A process and with respect to deal terms, particularly deal protection devices. Like in any relationship, there is a “give and take” between practitioners and Delaware. That is, practitioners are “on the front lines,” often innovating with respect to new deal structures and deal terms. After some time, Delaware has the opportunity to review these innovations. As the Delaware courts render decisions, they comment on behavior in the deal process and on the legality of contractual provisions. In turn, practitioners take heed. They not only comply with these deal norms but, at least in the context of deal protection devices, they slowly push the boundaries. Delaware tends not to take issue with this boundary pushing as practitioners are largely complying with deal norms. This Article examines this relationship between practitioners and Delaware and argues that this circular effect has had the result of eroding the very enhanced scrutiny standards which the courts have announced.


by Lauren N. Hancock

Every state has a victim compensation fund that provides financial relief to victims of crime who have no other way to pay for medical expenses, funeral costs, crime scene cleanup, or other costs associated with the crime. States impose their own eligibility requirements to determine which victims can receive funding. Six states prohibit victims with certain criminal histories from obtaining compensation. This means that innocent victims of crime are left with nowhere to turn because of something that they already “paid” for. This leaves victims, who are likely already in a financially precarious situation due to their felon status, with no way to pay for their bills. To make matters worse, the bans disproportionately affect Black victims who are overrepresented in the criminal justice system. Despite this negative impact, the Supreme Court has made it clear that the victims will not find any redress in the law. In fact, Congress has enacted legislation that negatively affects individuals with a criminal history, despite the disproportionate negative impact on Black individuals.

This Note suggests that Congress enact legislation prohibiting states receiving federal funding for their compensation funds from disqualifying victims based on their criminal history. Additionally, this Note encourages the six states with a criminal history ban to change their legislation and redefine “victim.”


by Rami Abdallah Elias Rashmawi

Over the past twenty years the Supreme Court of the United States has systematically limited the scope of federal class actions brought under Rule 23 of the Federal Rules of Civil Procedure. Importantly, in two landmark decisions, Wal-Mart Stores, Inc. v. Dukes and Comcast Corp. v. Behrend, the Supreme Court cemented a heightened level of inquiry demanded by Rule 23, a stringent, “rigorous analysis.”

This Note analyses the effects of this heightened inquiry on federal antitrust class actions, particularly in situations where the plaintiffs’ method of proving antitrust injury fails to do so for some of the putative class members. After the Introduction, Part II of this Note provides a brief overview of federal antitrust law and federal class action law, covering the goals and policies of each. Part III discusses the doctrinal effects of the landmark Supreme Court decisions in Wal-Mart and Comcast. Part IV outlines the two standards applied by federal courts in the pre-Wal-Mart era to assess whether an antitrust plaintiff’s method of proving injury met the requirements of Rule 23(b)(3). Part V of this Note analyzes these two standards and argues that the less stringent one did not survive the Supreme Court’s new post-Wal-Mart “rigorous analysis.” Part V then assesses the current state of a de minimis exception to the more stringent standard, analyzing the post-Wal-Mart federal appellate decisions discussing the exception. Finally, Part VI of this Note concludes and proposes a framework for assessing proof of class-wide antitrust injury to accompany the Supreme Court’s new more exacting class certification standards.