“‘Optimizing’ and Match: Bad Policy Threatens to Drive Bad Law” by Gregory Varallo, Andrew Blumberg, and James Janison Published by Harvard Law School Forum on Corporate Governance

November 13, 2023


In this Harvard Law School Forum on Corporate Governance article, BLB&G Partner Greg Varallo, Senior Counsel Andrew Blumberg, and Associate James Janison express their strenuous disagreement with several points outlined in a 2021 piece written by Professor Larry Hamermesh and former Court of Chancery and Delaware Supreme Court judges Leo Strine and Jack Jacobs (together, the “MatchMakers).

Greg, Andrew, and James dissect their points of objection, noting that “while the MatchMakers raise some interesting theoretical points, they fall far short of demonstrating that overruling decades of precedent would be in the best interest of Delaware corporations and investors.” In their opinion, “[s]ound policy supports the past quarter century of case law that subject conflicted controller transactions to entire fairness review absent compliance with MFW. To depart from this well-understood and well-functioning policy would sanitize controller conflicts in the opaque name of ‘optimization.’”