Analyzing Advance Notice Bylaws On 'Clear' Or 'Cloudy' Days

By Michael Schiffer, Carmen Fonda and Lauren Fields (August 1, 2024, 12:58 PM EDT) -- In a much-anticipated decision, the Delaware Supreme Court on July 12 echoed the Delaware Chancery Court's December pronouncement that advance notice bylaws adopted amid an approaching proxy contest seeking control of the board — i.e., on a "cloudy day" — are reviewed through the lens of enhanced judicial scrutiny. The court also clarified the framework for judicial review of advance notice bylaws adopted, amended or enforced on what it described as either clear or cloudy days....

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