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I think that while on paper it may not be, in a real-world setting it'd be hard to find a board that failed to live up to the BJR but still satisfied the Brehm factors. So a court would never have to actually answer your question, it would just point to Brehm.
I think a judge would be able to wiggle out of it. Looking at Brehm v. Eisner, 746 A.2d 244, 262 (Del. 2000) -- the 141(e) defense is unavailable if the complaint shows that: "(a) the directors did not in fact rely on the expert; (b) their reliance was not in good faith; (c) they did not reasonably believe that the expert's advice was within the expert's professional competence; (d) the expert was not selected with reasonable care by or on behalf of the corporation, and the faulty selection process was attributable to the directors; (e) the subject matter [...] that was material and reasonably available was so obvious that the board's failure to consider it was grossly negligent regardless of the expert's advice or lack of advice; or (f) that the decision of the Board was so unconscionable as to constitute waste or fraud." I think part (e) would most obviously undermine the 141(e) defense in your example, and I suspect that under the circumstances, parts (a) and (b) could be called upon too. After all, if the board was so oblivious that it lost the benefit of the BJR, what are the chances that its reliance on the expert was above reproach?
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Jul 8, 2015