Posted by Shaun J. Mathew and Daniel E. Wolf, Kirkland & Ellis LLP, on Saturday, May 26, 2018
Editor's Note: Shaun J. Mathew and Daniel E. Wolf are partners at Kirkland & Ellis LLP. This post is based on a Kirkland & Ellis publication by Mr. Mathew and Mr. Wolf. Related research from the Program on Corporate Governance includes Dancing with Activists by Lucian Bebchuk, Alon Brav, Wei Jiang, and Thomas Keusch (discussed on the Forum here).
We recently noted a Washington state case that upheld the validity of advance notice bylaws as “common” and supported a company’s close review of a stockholder’s director nominations for compliance with bylaw requirements. And as we have noted in the past, advance notice bylaws are a near-universal feature of the organizational documents of public companies that Delaware courts have repeatedly upheld as “useful in permitting orderly shareholder meetings.”
However, a recent decision from a New York state court highlights for public company boards, particularly in the context of transaction planning, potential challenges to the enforcement of nomination deadlines under certain circumstances.