New York and Delaware Agree: Directing Should Be Left to Directors

With its recent decision in In Re Kenneth Cole, the New York Court of Appeals expressly adopted the standard from Delaware’s highest court in its 2014 Kahn v. M&F Worldwide Corp. (MFW) decision, governing transactions in which a controlling shareholder proposes to take a public company private. But perhaps not enough attention has been paid to these two influential courts' having put the proverbial nail in the coffin of the proposition that ad hoc judicial inquiry provides better protection of shareholder rights than a properly run corporate process, overseen by independent fiduciaries. (The authors represented the independent directors of Kenneth Cole Productions in this case.)