Yakov Amihud, Markus M. Schmid & Steven Davidoff Solomon, Do Staggered Boards Affect Firm Value?, — Iowa Law Review — (forthcoming 2017)

We attempt to resolve conflicting empirical results in studies on the wealth effects of staggered boards by addressing issues of endogeneity, omitted variable bias and functional form. In a sample of up to 2,961 firms from 1990 to 2013 we find that additional variables provide significant explanatory power for the (negative) wealth effects of staggered firms found in prior studies, and their inclusion makes the effect of a staggered board on firm value insignificant. When we control for endogeneity by the instrumental variable method, we find again that the staggered board has no significant effect on firm value. Our results suggest caution about legal solutions which advocate wholesale adoption or repeal of the staggered board and instead evidence an individualized firm approach, and provide some measure of skepticism for law-related corporate governance proposals generally.

Matthew D. Cain et al., The Shifting Tides of Merger Litigation (2017)

In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to win a lawsuit challenging a merger and more difficult for plaintiffs’ counsel to collect a fee award.

We study what has happened in the courts in response to these changes. We find that the initial effect of the changes has been to decrease the volume of merger litigation, to increase the number of cases that are dismissed, and to reduce the size of attorneys’ fee awards. At the same time, we document an adaptive response by the plaintiffs’ bar in which cases are being filed in other state courts or in federal court in an effort to escape the application of the new rules.

This responsive adaptation offers important lessons about the entrepreneurial nature of merger litigation and the limited ability of the courts to reduce the potential for litigation abuse. In particular, we find that plaintiffs’ attorneys respond rationally to these changes by shifting their filing patterns, and that defendants respond in kind. We argue, however, that more expansive efforts to shut down merger litigation, such as through the use of fee-shifting bylaws, are premature and create too great a risk of foreclosing beneficial litigation. We also examine Delaware’s dilemma in maintaining a balance between the rights of managers and shareholders in this area.