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The structure of a large portion of takeover efforts made it relatively simple
for management to defend their resistance in terms other than self-entrenchment.-
To begin with, not all tender offers will necessarily make most stockholders
better off. A corporate board could reasonably find some tenders offers coercive
of shareholders, as, for example, a two-tiered offer which promises a premium
to the first stockholders to sell, whose purpose is to create a stampede of acceptance
on the part of those who fear being the ones to miss out (e.g.. Baron v.
Strawbridge. 1986). In addition, any offer that is so poorly financed that the
long-term survivai of the lirm is put m doubt arguably triggers a fiduciary duty
to reject it m order to protect the interests of any shareholder who does not wish
to sell {e.g.. Amanda v. Universal Foods. 1989). Such judgments gain credibility
when they are made by directors of demonstrable stature and independence without
employment or other significant financial ties to the company These "outside"
directors are presumably more disinterested than "inside"' directors who risk losing
a managerial position in a takeover battle
282 BUSINESS ETHICS QUARTERLY
But on numerous occasions courts have also found for boards of directors
who have rejected tender offers that are neither patently manipulative nor clearly
fiscally unsound. The language of the judicial opinions in several of these cases
sounds remarkably similar to that of a normative stakeholder approach. The Supreme
Court of Delaware, by far the most influential state court with respect to
corporation and securities law, has consistently rejected the notion that directors
have a duty to sell the company whenever a takeover proposal offers a premium
over current market value of company stock (Paramountv. Time, 1989: p. 1144),
and the court has even established a positive duty to "adopt defensive measures
to defeat a takeover attempt contrary to the best interests of the corporation and
its shareholders" (Revlon v MacAndrews, 1986, p,184). The court had implicitly
defined these corporate, but non-shareholder, interests very broadly when it had
ruled the previous year in Unocal v. Mesa Petroleum (1985) that boards might
consider impact on "customers, creditors, employees, and perhaps even the community
generally" (p, 955, italics mine).
Numerous court decisions in other jurisdictions have concurred by supporting
the right of boards to choose the continuation of corporate policies over
obtaining premium stock price for shareholders. Companies could refuse highly
leveraged offers likely to put an end to philanthropic and research policies
{Amanda v. Universal, 1989) or fight to keep a company independent when it
rationally saw such independence as vital for customer, community, and employee
relations {Baron v. Strawbridge Clothier., 1986). One court, for example,
upheld a bank's decision to choose one takeover "suitor" over another, explicitly
accepting as legitimate the bank's justification that the winning bidder was
better on "social issues," including the prospect of creating more opportunity
for the company's employees {Kayser v. National Finance, 1987, p. 265).
On one of the few occasions that the Supreme Court has spoken to the threeway
relationship between directors, shareholders, and other stakeholders {CTS
V. Dynamics