Airgas, Inc. v. Air Products & Chemicals, Inc. , Del. Supr., No. 649, 2010. The Delaware Supreme Court heard oral argument in this expedited appeal earlier this month, en banc. One of the 5 jurists hearing the case was a Superior Court judge sitting by designation. On November 17, 2010, however, that jurist who had been sitting by designation recused himself–and on the same day Delaware’s High Court issued an order stating that the case would be resubmitted en banc on an expedited basis without further oral argument and without further briefing. This time, all 5 members of the Delaware Supreme Court will be deciding the case, including Justice Jack Jacobs who had not been present at the oral argument. The recusal memo is available here, and the order resubmitting the case is available here.
Commentary on the oral argument before the Supreme Court and summaries of prior decisions by the Court of Chancery in this high-stakes takeover litigation are available here.