Last year, Vice Chancellor J. Travis Laster's ruled that McDonald's Corporation's former Executive Vice President and Global Chief People Officer, David Fairhurst, owed a duty of oversight comparable to the duty articulated by Chancellor Allen in In re Caremark International Inc. Derivative Litigation, 698 A.2d 959 (Del. Ch. 1996).  In re McDonald's Corp. S'holder Deriv. Litig., 289 A.3d 343, 370 (Del. Ch. 2023). At the time, I questioned:

[W]hy Delaware law would be applicable to Mr. Fairhurst who was an agent of McDonald's. Under Section 291 of the Restatement (Second) Conflict of Laws, the rights and duties of a principal and agent toward each other are determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the parties and the transaction under the principles stated in Section 6 of the Restatement. In many cases, the corporation and the officer may have specified a choice of law in an employment agreement, equity award agreement or plan, severance agreement, or other employment agreement. See Officers And The Business Judgment Rule.

Last December, Vice Chancellor Will applied Caremark analysis to claims against an erstwhile officer of a Delaware corporation formerly headquartered in New Jersey. Seqway, Inc. v. Cai, 2023 WL 8643017. Still no consideration of the choice of law issue.

For an analysis of McDonald's and Segway, see this post by Gail Weinstein, Philip Richter, and Steven Epstein at Fried, Frank, Harris, Shriver & Jacobson LLP.