CURRENT MONTH (October 2021)

Court of Chancery Denies Request for Plaintiffs’ Dissident Slate of Directors to Stand for Election at the Annual Meeting of CytoDyn Inc. Following Expedited Dispute Over Advance Notice Bylaw

By Alyssa Gerace Frank, Nicholas D. Mozal, Jacqueline A. Rogers, Daniel M. Rusk IV, Zachary C. Woerner

Rosenbaum v. CytoDyn Inc., C.A. No. 2021-0728-JRS (Del. Ch. Oct. 13, 2021) (Slights, V.C.)

In this memorandum opinion and following trial on a paper record, the Delaware Court of Chancery denied plaintiffs’ request for a mandatory injunction to compel CytoDyn Inc. (the “Company”) to allow plaintiffs’ dissident slate of directors to stand for election to the board at the Company’s October 28, 2021, annual meeting. The Court concluded that plaintiffs’ nomination notice, which was submitted on the eve of the notice deadline specified in the Company’s bylaws, was deficient and the board was justified in rejecting it, despite a nearly month-long delay in responding to the notice.

Importantly, the CytoDyn opinion represents the first ruling on the merits by a Delaware court analyzing a board’s rejection of a nomination notice for disclosure deficiencies relating to information required by an advance notice bylaw.  As noted by the Court, “[w]here Plaintiffs ultimately went wrong here is by playing fast and loose in their responses to key inquiries embedded in the advance notice bylaw….”

See Business Law Today’s full-length article on this topic for more information.


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