The Delaware Court of Chancery, in In re Volcano Corp. Stockholders Litigation, held that a majority of the outstanding, fully-informed, uncoerced, disinterested stockholders’ tender of their shares renders the business judgment rule “irrebuttable,” insulating a merger from challenge on any ground except for waste.

These authors guide that if a company is going to effect an IPO or a spin-off, the resulting company should consider putting into place in advance any commercial arrangements it intends to enter into with the controller.