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_________________ 1 Delaware has three tiers of review for evaluating director decision-making: the business judgment rule, enhanced scrutiny and entire fairness.Delaware's default standard of review is the "business judgment rule," a principle of nonreview that reflects and promotes the role of the board of directors as the proper body to manage the business and affairs of the corporation.The court decided that the challenged payments were actionable because they diverted funds from Athilon to EBF (Athilon's sole shareholder) when Athilon was insolvent and its creditors had become the residual beneficiaries of any increase in Athilon's value.Citing , the court reasoned that when a corporation like Athilon is insolvent, its creditors take the place of its shareholders as the residual beneficiaries of any increase in corporate value. owned beneficially and indirectly by all of the residual claimants to the party in control of the corporation." Accordingly, the court concluded that the business judgment rule presumption did not apply to protect the director defendants, and they therefore had the burden of proving the entire fairness of the challenged payments.The Court of Chancery of Delaware recently issued a noteworthy decision clarifying fiduciary duties and confirming business judgment rule protection for board-level business strategy decisions by directors of insolvent corporations., 102 A.3d 155 (Del. The Court of Chancery also ruled the business judgment rule does not protect directors who cause or permit the transfer of insolvent company value preferentially to a controlling stockholder or its affiliate without ratably benefiting all residual claimants (, creditors).
Under Athilon's operating guidelines, its credit rating downgrade forced it into runoff mode.
2 Delaware law imposes fiduciary duties on those who effectively control a corporation.