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A Clearly Rattled Delaware Contemplates Significant Changes To Its Corporations Code
Wednesday, February 19, 2025

On Monday, Delaware State Senator Bryan Townsend introduced Senate Bill 21 which would, among other things, statutorily define "controlling stockholder" and substantially change the rules governing the "cleansing" of controlling stockholder transactions. Professor Ann Lipton provides a summary of these changes here and Professor Stephen Bainbridge provides his own take on the amendments here. Among other things, Professor Lipton observes:

Collectively, the changes represent a wholesale repudiation of Delaware’s common law approach to lawmaking; instead, they most closely resemble the MBCA’s rule-bound approach. 

Actually, I believe that Delaware is moving in the direction of Nevada's statutory based approach whereby the rules of the road are established primarily by the legislature and not the courts. In fact, this is often cited as a reason to reincorporate in Nevada:

 After considering various alternatives, the evaluation committee concluded that Nevada’s statute-focused approach would likely foster more predictability than Delaware’s less predictable common law approach, and that that predictability could be a competitive advantage for the Company in a time of rapid business transformation. 

Information Statement filed by Dropbox, Inc. on February 10, 2025.

I do disagree with both Professor Lipton and Dropbox insofar as they characterize Delaware as having a "common law approach". A distinctive feature of the Court of Chancery is that it is a court of equity, something relatively rare in jurisprudence. A court of equity is results oriented because it is focused on "doing equity". In fact, this has been the historical understanding that equity (ἐπιεικές*) serves as a correction (ἐπανόρθωμα) of the law. Aristotle, Nicomachean Ethics Book V, Section 10. Thus, it has been my own view that while the Court of Chancery has been an historical draw for Delaware, the Court's broad power to do equity is ultimately proving to undermine Delaware's preeminence. SB 21 and the Delaware legislature's assertion of statutory law implicitly recognize this fact.

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