The Annual Tulane Corporate Law Institute in New Orleans, held on March 23 and 24 this year, attracts leading practitioners in corporate and commercial law from around the country, including a somewhat disproportionately large number of lawyers from Delaware–as well as members of the Delaware judiciary who participate in panel presentations. For those who seek to avoid blasphemy in matters of Delaware corporate law, it remains helpful to hear the insights from the members of the Delaware courts who have the last word on Delaware corporate law orthodoxy.
The seminar spans two full days, but for purposes of this blog post, I’ll highlight only a few sound bites from two of the presentations that focus exclusively on Delaware law. The seminar was founded in large part by the late, great Delaware Supreme Court Justice Andrew G.T. Moore, who was a graduate of Tulane Law School, which sponsors and organizes the annual event. A few blogs posts over the last 18 years have provided highlights from a handful of the prior 34 seminars.
One panel was entitled: Delaware Developments:
The panel members for the above topic discussed the recent amendment to the Delaware General Corporation Law providing for officer exculpation. Notably, it is not identical to the director exculpation provisions. It only applies to selected officers and has yet to be universally adopted by most public companies since its August 2022 passage. A recent expedited transcript ruling of March 29, 2023, in the Delaware Court of Chancery involving the Fox Corp and Snap, relates to the adoption of officer exculpation amendments to the corporate charter and DGCL § 242 that provide some insights on this new amendment.
Recent cases applying Caremark claims have been enjoying more traction than historically has been the case since the Caremark decision was issued about three decades ago. See, e.g., the recent McDonald decision applying Caremark duties to officers.
Another panel member discussed caselaw that addresses when someone with less than 50% ownership of a company can be deemed a controlling stockholder, which triggers duties and standards that may become outcome-determinative. Hint: It requires a holistic and comprehensive analysis.
Another panel was entitled: Institutional Role of Delaware Courts in Business Disputes
Members of the Delaware Supreme Court and Delaware Court of Chancery on this panel discussed the long-term track record of Delaware courts handling cases of substantial complexity on an expedited basis applying a capacious scope of potential remedies with an extensive body of case law to rely on for many business issues decided by jurists who devote a large part of their time to those types of cases. The recent Twitter v. Musk case was a good example.