But pretending this is some CRAZY WILD WEST ACIVIST JUDGE IGNORING PAST RULINGS just ain't so, and nobody has provided a shred of evidence for such a claim.
The Cravath law firm legal briefing for the appeal will have plenty of argument on this point, and it is likely to be successful.
Until then, this judge was way out of line in that:
1. she applied law that applies to company transforming change-of-control transactions, not mere compensation decisions
2. she fundamentally doesn’t understand that compensation decisions (where the board needs to work with the CEO that they are compensating) is fundamentally different from a change-of-control transaction where the parties will go their separate ways after the transaction.
3. she manufactured a phony disclosure violation (failure to disclosure a single phone call in early stages of the compensation process) that in no way affected the total mix of information that was material to shareholders
4. she manufactured a phony independence violation (Elon and Ehrenphreis were friendly and had business dealings)
5. The remedy, purporting to put the parties back in the position they were in before the contract, is laughable as Elon already performed his part of the agreement.
6. Delaware got to where it is by having a predictable law through a combination of clear statutory and predictable judicial law — this decision introduces massive uncertainty and unpredictability into Delaware corporate law.
7. The text of the opinion drips with immature snark and unprofessionalism and reads like someone with an agenda more than any other opinion coming out of the normally fair and professional Delaware courts.
Tornetta was a poor legal opinion and will eventually be revealed as such through further litigation.