Delaware Court of Chancery holds that directors on a special committee are interested in a going-private merger when the merger effectively extinguishes their personal liability from viable derivative litigation
By: Scott E. Waxman and Chris Fry
In Re AmTrust Financial Services, Inc. Stockholder Litigation, No. 2018-0396AGB (Del. Ch. 2020), George Karfunkel, Leah Karfunkel, and Barry Zyskind, the controlling stockholders of AmTrust Inc. (respectively, the “Controlling Stockholders” and “AmTrust”), teamed up with private equity firm, Stone Point Capital LLC (“Stone Point”), to take AmTrust private through a squeeze-out merger (the “Merger”), which closed in November 2018. Former stockholders (the “Plaintiffs”) challenged the Merger, asserting several claims for breach of fiduciary duty and aiding and abetting against the Controlling Stockholders, Stone Point, and AmTrust’s Board of Directors (the “Board”), among other participants in the Merger (collectively, the “Defendants”). DeCarlo, Gulkowitz, Fisch, and Rivera sat on both the Board and the special committee (the “Special Committee”), which negotiated the Merger and made recommendations to the Board regarding the same. The Delaware Court of Chancery (the “Court”) upheld the claims against the Board finding that the Controlling Stockholders and members of the Special Committee, except Rivera, were, among other issues, interested in the transaction, and therefore the Merger failed to comply with the procedures outlined in controlling precedent to obtain the benefit of a business judgment review, subjecting the Merger to the entire fairness standard of review.
Read More