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The most fundamental and longstanding debate in corporate law--the purpose of the corporation--has found new energy in connection with broader discussions about the power of modern corporations and their role in society. Companies have increasingly embraced the consideration of employees, communities, and other stakeholders in the course of everyday business. However, these same considerations are virtually non-existent in merger and acquisition (M&A) transactions. Elon Musk's recent acquisition of Twitter provides an illustration of this stark disconnect. Prior to the transaction, Twitter pursued numerous stakeholder-centric goals. In contrast, Musk had taken a skeptical, if not hostile, stance toward stakeholder governance. When Twitter negotiated its sale to Musk, the board succumbed to "stakeholder amnesia"--overlooking its stakeholder commitments in favor of the high-premium all-cash offer from Musk. Twitter is not alone: stakeholder amnesia is a widespread phenomenon in M&A. In this Article, we argue that corporate boards have the legal and practical ability to consider stakeholder interests in their dealmaking. We examine three of the most significant barriers that might prevent a board from incorporating their stakeholder-related objectives into transactions--fiduciary duties, negotiation leverage, and contractual feasibility--and demonstrate that, outside of the Revlon context, none of these are compelling barriers. Rather, boards that consider stakeholder interests in their dealmaking can be acting consistently with their fiduciary duties. Moreover, boards often have the negotiation leverage and capability to incorporate stakeholder protections into their contractual agreements. We conclude that stakeholder considerations can pervade all aspects of managerial decision-making, including decisions about the sale of the company. In doing so, we also provide specific recommendations for courts, boards, and transaction planners. [ABSTRACT FROM AUTHOR]

We present the first evidence on the incidence of “trip wire” versus “last look” poison pills. Using a hand-collected data set of 130 poison pills implemented and/or amended between January 1, 2020, and March 31, 2023, we find that pills are almost evenly divided between trip-wire and last-look pills. We find that the main—if not exclusive—driver of the variance in this pill design feature is the law firm that installs the pill. We further find that top tier M&A firms (defined as ranked Band 1, 2, or 3 in Corporate/M&A by Chambers) are far more likely to put in a trip-wire feature. Firms outside of this top tier are far more likely to put in a last-look feature. We argue that a trip-wire feature is consistent with a well-known strand of the bargaining literature, demonstrating that irrevocable commitment provides bargaining leverage. The fact that top-tier law firms put in trip-wire pills is an implicit acknowledgement of that literature. Sophisticated practitioners understand the importance of irrevocable commitments in other areas of transactional practice as well (e.g., “don’t ask, don’t waive” standstill agreements). We further demonstrate that a last-look provision is not required under Delaware corporate law. Our finding that top-tier firms are more likely to adopt best practices is consistent with other literature showing a slow dissemination of cutting-edge features in transactional practice (e.g., Coates 2001; Subramanian 2005). We apply our findings to examine the poison pill that Twitter’s board of directors installed in April 2022, in response to Elon Musk’s offer to buy the company. Consistent with our overall findings, the Twitter pill, which included a last-look feature, was not put in by a law firm ranked Band 1–3 in Corporate/M&A by Chambers. We argue that this last-look feature might have been disastrous for Twitter, if Elon Musk had actually triggered the pill. At least with hindsight, Musk might have been able to acquire Twitter for billions less had he triggered the Twitter pill. [ABSTRACT FROM AUTHOR]