Over the past few years, the level of disclosure regarding the work performed by a financial adviser rendering a fairness opinion in connection with an M&A transaction has increased substantially, due in part to decisions of the Delaware Court of Chancery.

In recent months, the Delaware Court of Chancery has issued two opinions, Olson v. ev3, Inc. and Blades v. Wisehart, dealing with the validity of capital stock.

On July 13, 2011, Governor Jack Markell signed Senate Bill 104. This legislation excludes the application of 25 Del. C. § 314(c) to most commercial real estate contracts involving seller financing.

In In re Massey Energy Company Derivative and Class Action Litigation, the Delaware Court of Chancery declined to preliminarily enjoin a merger between Massey Energy Company and Alpha Natural Resources, Inc.

In In re Orchid Cellmark Inc. Shareholder Litigation, the Delaware Court of Chancery denied plaintiffs' motion to enjoin preliminarily a cash tender offer by Laboratory Corporation of America Holdings, Inc. for all of the shares of Orchid Cellmark Inc. for $2.80 per share under an Agreement and Plan of Merger, dated April 5, 2011.

In Krieger v. Wesco Financial Corporation, the Delaware Court of Chancery denied plaintiff stockholder's motion for a preliminary injunction against a proposed acquisition of Wesco Financial Corporation by Berkshire Hathaway , the holder of 80.1% of the Company's common stock, in which Berkshire sought to acquire the remaining outstanding shares of common stock.

In In re Smurfit-Stone Container Corp. Shareholder Litigation, the Delaware Court of Chancery addressed "whether and in what circumstances Revlon applies when merger consideration is split roughly evenly between cash and stock."

Legislation amending the General Corporation Law of the State of Delaware has been adopted by the Delaware General Assembly and was signed by the Governor of the State of Delaware on July 7, 2011.

Over the last several years, the rise of electronic discovery, the increasing focus of inhouse counsel on business roles, and the increasing complexity of mergers and acquisitions have expanded signifi cantly the volume and type of potentially privileged documents created in connection with mergers and acquisitions.

In this article, we discuss the current state of Delaware’s fiduciary disclosure regime and the developments over the last three years.