On February 9, 2024, Michael D. Schiffer, Carmen M. Fonda, Yair Even-Tal, and Lauren Fields published “Delaware Chancery Court Provides Further Guidance on Advance Notice Bylaw Amendments Amidst a Proxy Contest" in The Corporate Governance Advisor. The following is an excerpt:
In “a tale of wins and losses on both sides," the Delaware Court of Chancery reiterated that advance notice bylaws adopted amid an approaching proxy contest are reviewed through the lens of enhanced judicial scrutiny to determine whether they are a reasonable and proportionate means to defend against potentially abusive and deceptive practices by activists or hostile acquirors, and held that certain provisions that the court found overbroad, ambiguous or ripe for subjective interpretation were not permissible. Kellner v. AIM ImmunoTech Inc., et al., C.A. No. 2023-0879-LWW (Del. Ch. Dec. 28, 2023).