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In In re Transkaryotic Therapies, Inc., 2008 WL 2462767 (Del. Ch., June 19, 2008), the Court of Chancery of Delaware recently granted summary judgment to Transkaryotic directors alleged to have breached their fiduciary duties of disclosure (also sometimes referred to as the duty of “candor”) and loyalty in connection with Shire Pharmaceuticals' acquisition of Transkaryotic. Chancellor Chandler's decision in noteworthy in two respects. First, with regard to the duty of disclosure, the court held that damages are not an appropriate remedy for material disclosure deficiencies and, once a stockholder vote has been taken and the transaction closed, it is too late to grant injunctive relief. Second, with regard to the duty of loyalty, the court refused to characterize engaged and active behavior of directors who had relationships with a major stockholder and the CEO of the acquiring company as disloyal, absent a showing of a material personal benefit or bias.
Background
This case arose from the actions of three Transkaryotic directors ' Yetter, Moorhead and Leff ' in the months leading up to the acquisition of Transkaryotic by Shire in a merger transaction consummated on July 27, 2005. In October 2004, the CEO of Shire, a diversified pharmaceutical company, confidentially expressed interest in a transaction to acquire Transkaryotic, a specialized biopharmaceutical company, in a telephone call to Yetter, with whom Shire's CEO had a previous relationship. The following month, Shire delivered an official expression of interest. Yetter, Moorhead and Leff supported pursuing a takeover by Shire, while the other four directors expressed concerns.
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