Frank Reynolds, who has been covering Delaware corporate decisions for various national publications for over 35 years, prepared this article.

The Delaware Court of Chancery recently refused to dismiss shareholder charges that TripAdvisor Inc.’s CEO/controller and directors robbed them of litigation rights by moving the firm’s charter to Nevada in a self-interested transaction that triggered the exacting entire fairness standard because the changes benefited only the defendants, in Palkon et. al. v. Maffei, et. al., No. 2023-0449-JTL  opinion issued (Del. Ch. Feb. 20, 2024).

Vice Chancellor Travis Laster’s February 20 opinion denied the company’s motion to dismiss the breach-of-duty suit after he found no evidence of a motive for the change other than insulating TripAdvisor officers and directors — and no attempt at bargaining or investor compensation for the increased shielding.

The Opinion’s Importance

The opinion is likely to be closely studied by corporate governance specialists—especially those with clients who would be impacted by a charter change that affects shareholder litigation rights.  Delaware, where two thirds of major Americans are incorporated, prides itself on its efforts to balance the power of public shareholders and corporate management and controllers. 

However, Vice Chancellor Laster’s opinion noted that if the engineers of a transaction control a majority of stock, the minority could go forward with a derivative suit if they can show–as they did here on a motion to dismiss–that the move was self-interested, triggering application of the plaintiff-friendly entire fairness standard.  And although in this case, the defendant CEO owned a full “hard majority” of TripAdvisor through his multi- vote shares, Delaware courts have found defendants with as little as 20 percent interest to be a “controller” if they had an influence over a majority of directors.

The opinion is valuable because it lists the defendants’ failures to craft a transfer plan that would have been fair to the minority and details the steps the defendants could have taken to devise a reincorporation that would not have triggered review under the entire fairness standard.


 Gregory B. Maffei,  the CEO, Chairman and controlling shareholder of TripAdvisor which operates the world’s largest travel guidance platform, consulted his directors and lawyers  to produce a plan to reincorporate in Nevada to better protect the officers and directors under that state’s corporate law.  Shareholders sued, charging breach of duty and defendants moved to dismiss.

What standard applies?

The Vice Chancellor said the outcome of the motion depends first on which of Delaware’s three tiers of review for evaluating director decision-making applies.

Business judgment

This is Delaware’s default standard of review. When applying that standard, a court presumes that the defendant fiduciaries “acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.”  Unless a plaintiff rebuts one of the elements of the rule, “the court merely looks to see whether the business decision made was rational in the sense of being one logical approach to advancing the corporation’s objective.”

Advanced scrutiny

Under this standard, he said, the directors must establish that they (i) sought to pursue a legitimate end and (ii) selected an appropriate means of achieving it.

Entire fairness

Under that standard, the fiduciary defendants must establish “to the court’s satisfaction that the transaction was the product of both fair dealing and fair price.” “Not even an honest belief that the transaction was entirely fair will be sufficient to establish entire fairness. Rather, the transaction itself must be objectively fair, independent of the board’s beliefs.”

Was there a benefit?

Since Plaintiffs allege—and for purposes of this motion, defendants concede—that Maffei controls TripAdvisor and since no one suggests that the conversion was cleansed in any way, determining the correct standard of review therefore depends on whether the conversion conferred a non-ratable benefit on the fiduciary defendants, the court said.

The next step for the court was to determine whether the reincorporation conferred a “non-ratable benefit” on the controlling fiduciary by reducing the risk of shareholder litigation liability.  The Vice Chancellor said the answer is “yes” because, “Obtaining coverage for future potential liabilities is a benefit, and insureds pay premiums to get it.”

Fair dealing?

The vice chancellor concluded that the way the reincorporation came about was not fair to the public shareholders.  He noted that, “The procedural dimension ‘embraces questions of when the transaction was timed, how it was initiated, structured, negotiated, disclosed to the directors, and how the approvals of the directors and the stockholders were obtained.”

He found that the unaffiliated stockholders’ voting pattern:

“supports an inference of unfairness. Just as an informed vote by unaffiliated stockholders in favor of a conflicted transaction is evidence of fairness, an informed vote by unaffiliated stockholders against a conflicted transaction suggests unfairness.  Here, the unaffiliated stockholders resoundingly rejected the conversions.”

Injunction or Damages?

The court denied the motion to dismiss but declined to approve plaintiffs’ motion to enjoin the reincorporation because money damages could be sufficient, if proven, since they could be based on any decline in stock value after the move.