The rule seemed well settled. When a controlling shareholder attempts to take a company private, and the minority shareholders challenge the transaction alleging a breach of fiduciary duty, the court reviews the transaction under the entire fairness standard—under which the controlling shareholder has the initial burden to prove the transaction was fair. The only questions were how and when the burden would shift to the minority shareholders to show it was unfair.
Delaware Supreme Court cases...
Ultimately, I agree with your conclusion that the parties to a litigation funding agreement must contractually negotiate the scope of their respective duties. I believe, however, that for several reasons those duties should be contractual and tailored to the specific transaction rather than a blanket application of common law fiduciary duties.
First, let me say that at Themis, while we consider our company to be an active funder, we fully acknowledge that the ultimate decision making authority...
