A recent decision from the Delaware Court of Chancery addressed damages for breach of the fiduciary duty of loyalty where they were not capable of precise measurement, and there was also a claim for spoliation. The most recent decision in this matter addresses damages. Sorrento Theraupetics, Inc. v. Mack, C.A. No. 2021-0210-PAF (Del. Ch. July 31, 2025). The detailed factual background was addressed in a prior post-trial decision which found a breach of the fiduciary duty of loyalty, and a violation of a trade secrets statute related to unlawful competition. See Sorrento Theraupetics, Inc. v. Mack, 2023 WL 5670689 (Del. Ch. Sept. 1, 2023)

This 52-page opinion deserves careful review for the important factual details and nuances that imbue the analysis, as well as the multiple issues addressed, but this short post will just highlight several aspects of the Court’s reasoning and the remedies awarded that are most interesting to me.

  • The Court observed that Chancery has broad equitable powers to fashion a remedy when complicated factual details and other circumstances make the award of a remedy an inherently imprecise process. Slip op. at 9-10. The Court also cited to ample precedent to explain that, especially in the context of a breach of the fiduciary duty of loyalty, the amount of damages need not be precisely measurable. Slip op. at 25-27.
  • The Court awarded damages in the amount of the entire salary of the fiduciary who engaged in disloyal conduct for the entire period during which he was president of the company involved. The Court carefully reasoned that his entire salary during that period would be calculated as damages.
  • But, the Court rejected the request by the plaintiff to also include as damages the salaries of several colleagues who worked with the faithless fiduciary because the Court found that the plaintiffs did not prove those damages. Put differently, the Court credited the defense argument that the time spent by those employees on prohibited behavior was de minimis, and by implication that most of their time was spent on proper activities.
  • In sum, the Court found that the plaintiff did not prove damages by showing how much of the time was spent on improper activities by those colleagues. That is, damages in the amount of their salaries was not proven. Slip op. at 23-26.
  • As an exception to the American rule, and as a component of damages for breach of the duty of loyalty that the Court found was willful and malicious, and in light of damages not being readily measurable, the Court awarded one-third of the fees incurred in pursuit of the litigation. The Court had also found a breach of the applicable, trade secrets statute that also gave the court addition discretion to award remedies See Slip op. at 45-46.
  • The Court also awarded fees based on spoliation of evidence because the same fiduciary who breached his fiduciary duty of loyalty, also deleted hundreds of documents—but denied doing so. The defendant even suggested, with no credibility, that his children may have deleted the documents. See Slip op. at 48 and footnote 130. [Although the Court had also previously found that the defendant violated a trade secrets statute, the award of fees, based on that statute, was discretionary. Still, it was part of the Court’s analysis in connection with its award of one-third of the fees incurred.]

Frank Reynolds, who has been covering Delaware corporate decisions for various national publications for over 40 years, prepared this article.

A Delaware Supreme Court panel recently reversed the dismissal of an Amazon.com Inc. shareholder’s books and records action, finding that the complaint’s alleged violations of antitrust law established a “credible basis” from which the Court of Chancery could have inferred wrongdoing Roberta Ann K.W. Wong Leung Revocable Trust v. Amazon.com Inc., Del. Supr., No. 487, 2024 (July 28, 2025).

Writing for a three-member high court panel, Justice Christopher Griffith ruled that Chancery should not have endorsed a magistrate’s recommendation to grant Amazon’s motion to reject the plaintiff shareholder’s Section 220 request without fully evaluating the strength of the suit’s anti-competition allegations.

Corporate law specialists should review the high court’s distinction between Section 220 complaints based on mere allegations of monopolistic actions and suits such as this one by an Amazon investor who cited alleged violations of antitrust laws that largely survived a motion to dismiss—establishing a credible basis to infer wrongdoing.

Background

According to the high court, “In recent years, Amazon has faced regulatory scrutiny in the United States and internationally for purported anticompetitive activities. These government inquiries have led to challenges from Amazon’s stockholders alleging possible wrongdoing and mismanagement by its fiduciaries.”

In October 2023, the Roberta Ann K.W. Wong Leung Revocable Trust Dated 03/09/2018 demanded to inspect Amazon’s books and records under Section 220 of the Delaware General Corporation Law to investigate possible wrongdoing and mismanagement. The stockholder claimed that Amazon had engaged in anticompetitive activities in the United States and Europe.

A Magistrate in Chancery held a one-day trial and concluded in a final report that plaintiff did not meet its burden prove a “credible basis” to investigate wrongdoing.  When the stockholder appealed, a vice chancellor adopted that conclusion without addressing the magistrate’s credible basis analysis and instead found the plaintiff’s inspection purpose was so “overbroad” that it was “facially improper” and not “lucid.”

The high court panel disagreed, highlighting two key areas.

History of monopolistic behavior

The panel said even if most of the allegations investigated by shareholders and government agencies cited did not result in judgments against Amazon and its fiduciaries, the company has accumulated a “history of monopolistic behavior”. Even so, the combined effect of those investigations and findings could produce the impression of anti-competitive behavior, the justices said.

The Federal Trade Commission Action

 “Central to the demand is a complaint filed by the Federal Trade Commission against Amazon alleging twenty violations of state and federal antitrust laws,” the panel noted.  In September 2023, the FTC—joined by seventeen states—filed a complaint in the Western District of Washington, alleging that Amazon had a “durable monopoly power” in the “online superstore market” and the “online marketplace services market.”

According to the court record, before filing its complaint, the FTC conducted a four-year-investigation during which Amazon produced millions of pages of documents and more than one-hundred pages of written interrogatory responses.  In September 2024, the district court granted in part and denied in part Amazon’s motion to dismiss the FTC complaint, with most claims surviving the motion-to-dismiss stage.  The high court noted that in that decision, “The federal claims under the Sherman Act and the FTC Act survived”, and nearly every state law claim survived or was dismissed without prejudice with leave to amend.

Clarified discovery standard

The panel said the standard of review for discovery is that: [t]he inspection such stockholder seeks is for a proper purpose and, “A proper purpose is a ‘purpose reasonably related to such person’s interest as a stockholder.’” It observed, “this Court has stated that “corporate wrongdoing . . . in and of itself” is “a legitimate matter of concern”.

“Delaware caselaw shows that meeting this burden often requires more than a mere untested allegation of wrongdoing but does not require that the underlying litigation result in a full victory on the merits against the company,” the panel emphasized in clarifying the discovery demand standard.

The high court cited In re Facebook, Inc. Section 220 Litig., 2019 WL 2320842 (Del. Ch. May 30, 2019), Lebanon Cnty. Emps.’ Ret. Fund v. AmerisourceBergen Corp., 2020 WL 132752 (Del. Ch. Jan.13, 2020), aff’d, 243 A.3d 417 (Del. 2020), and several other cases as examples of how to meet that standard, noting that, “As these cases reveal, the credible basis standard remains a highly fact-intensive analysis that by its nature resists a brightline rule.”

However, the justices added, ‘’But where a stockholder presents evidence of ongoing investigations and lawsuits, and those investigations and lawsuits have advanced beyond untested allegations, then the evidence can be sufficient to meet the credible basis standard, especially when liability or fines could result in a corporate trauma.”

Leading corporate law professor Stephen Bainbridge provides an analysis of the titular topic in an article that cites to many sources, including his own scholarship, to support his view that: accountability must be balanced with authority.

The introduction is quoted below:

“One of the things that bugs me the most about much of normative corporate law scholarship is the fixation on accountability. Virtually everything you read in the field follows a basic formula. Step 1: spot a problem. Step 2: advocate solving it with a new, bigger, better accountability mechanism. Usually that mechanism is some new legal rule; occasionally, it is some new extrajudicial mechanism.
We are told agency costs are pervasive. Reducing agency costs is therefore the central problem of corporate law. Accountability is therefore essential.
But what almost nobody stops to consider is the question: “at what cost”? Are there countervailing values that suggest letting some things fall through the cracks? Letting existing market forces deal with the problem?
This essay draws on my book The New Corporate Governance in Theory and Practice, which sets out at length my director primacy theory of corporate law.“

As the Editor-in-Chief of The National Law Review‘s publication called the Delaware Corporate and Commercial Law Monitor, I’m pleased to share the Sixth Edition that has now been published.

The Delaware Corporate and Commercial Law Monitor curates articles from many commentators around the country. Commentary from academia and practitioners continues to examine the fallout from the seismic change to the Delaware General Corporation Law known as SB 21, as well as the related updates on the DExit debate. We also highlight recent decisions on perennial issues such as advancement, non-compete provisions, receiverships, and statutory demands for corporate books and records. (My role for this publication is in addition to my full-time practice and maintaining this blog–now in it’s 20th year–as well as upholding my rich family life and participation in various religious, cultural, professional and community organizations.)

A recent Delaware Court of Chancery decision provided a nuanced analysis to explain its reasoning for not appointing a receiver for a cancelled LLC. In PXP Producing Co. LLC v. MitEnergy Upstream LLC, C.A. No. 2024-0668-MTZ (Del. Ch. June 26, 2025), the complaint also sought nullification of the cancellation on the grounds that the company violated Section 18-804 of the Delaware LLC Act by dissolving without making any provision for specified obligations which, the petitioner argued, made the cancellation unlawful under Section 18-203. The Court discussed whether the claims were time barred under 10 Del. C. Section 8106, and also denied a motion to intervene.

Note a recent Chancery decision addressing similar issues that was highlighted today on these pages.

Highlights

  • The Court explained the basis for appointing a receiver under Section 18-805 to settle “unfinished business of a limited liability company” and to “safeguard the collection and administration of still existing property interests of a dissolved LLC.” Slip op. at 17.
  • The statute authorizes the receiver to take custody “of the limited liability company’s property and to collect the debt and property due and belonging to the limited liability company . . . with the goal of ‘settling unfinished business of the limited liability company.’” Slip op. at 17-18.
  • The Court emphasized that under Section 18-805, in order to warrant the appointment of a receiver a petitioner “must show good cause therefor.” Petitioner attempted to satisfy this requirement by alleging a violation under Section 18-804(b) in connection with the cancellation of the LLC.
  • The petitioner was required to allege sufficient grounds for the Court to conclude that it was reasonably likely that the company “held assets at the time of dissolution but failed to reserve for claims as Section 18-804(b) requires.” Slip op. at 18.
  • The Court observed that the petitioner did not assert that the distributions occurred after the dissolution or during its winding up—which timing is critical to allege a violation of Section 18-804(b). Id. at 22.
  • The opinion also provides an extensive discussion of a veil-piercing claim, which was not sufficiently alleged. See Slip op. at 23-32.

This decision provides helpful guidance on the requirements for the appointment of a receiver of a cancelled LLC.

A recent Chancery decision addressed whether an LLC failed “to pay or make reasonable provision to pay” a judgment in violation of Section 18-804 of the Delaware LLC Act when the LLC was dissolved. In Epie v. Herakles Farms, LLC, C.A. No. 2020-0999-BWD (Del. Ch. July 21, 2025), the Court determined that the foreign judgment sought to be collected was not “entered against the LLC”; thus, there was no basis to nullify the LLC’s Certificate of Cancellation, and likewise the plaintiff lacked standing to seek the appointment of a receiver.

A recent Chancery decision addressing similar issues was highlighted on these pages.

Brief Background Facts

The Certificate of Cancellation for the LLC was filed on April 2017. At that time, the LLC had no assets to distribute or set aside in reserve to pay claims. In October 2017, the plaintiff attempted to collect a judgment against the LLC, but a New York Court determined that the judgment could not be entered against the LLC because it had been cancelled.

Procedural History

In November 2020, the plaintiff initiated this action. In November 2021, a motion to dismiss by the LLC was denied.

Highlights

The Court reviewed the provisions of Section 18-804 of the Delaware LLC Act which states that a limited liability company which has been dissolved shall pay or make reasonable provisions to pay all claims and obligations known to the limited liability company. See Section 18-804(b)(1).

Section 18-804(b)(3) requires a limited liability company in the course of winding up to make such provision as will be reasonably likely to be sufficient to provide compensation for claims that have not been made known to the limited liability company but based on known facts are likely to arise or become known to the limited liability company within ten years after the date of dissolution. Slip op. at 12.

The Court observed that: “if an LLC is not wound up in accordance with the LLC Act, this Court may nullify the Certificate of Cancellation, which effectively revives the LLC and allows claims to be brought by and against it.” Slip op. at 13.

This decision might have limited applicability because it turned on whether or not the foreign judgment was entered against the LLC. The Court determined that it was not, and therefore, reasoned that the plaintiff could not demonstrate that the LLC improperly failed to set aside assets to satisfy the judgment and could not establish a violation of Section 18-804(b)–and likewise did not have standing under Section 18-805 as a creditor to seek the appointment of a receiver.

Our favorite corporate law scholar, the prolific Professor Bainbridge, provides scholarly insights that compare the current position of large U.S. corporations represented on the Business Roundtable with the public statement of the group in 2019 that heralded a new age of corporate governance that focused on ESG and related social justice goals–instead of shareholder value maximization that had been the longstanding bedrock principle for all corporations.

Turns out that statement, with all its fanfare, was just greenwashing by the BRT. The good professor cites to his book on shareholder value maximization and other scholarship as part of his commentary on a recent Wall Street Journal story in which leading CEOs boast about shrinking their workforces and embracing AI.

Read both articles at the above links.

Frank Reynolds, who has been covering Delaware corporate decisions for various national publications for over 40 years, prepared this article.

 The Delaware Court of Chancery recently dismissed all claims against Elon Musk and his X Corp. acquisition entities brought by a Twitter Inc. investor who claimed to have lost $1.88 million because of Musk’s alleged on-and-off commitment to buy the social media platform in Khalid v. Musk, et. al., C.A. No. 2024-0443-KSJM (Del. Ch.(July 18, 2025).

Chancellor Kathaleen McCormick found insufficient support for a mix of a dozen tort, fiduciary, and contractual charges and a claim that Musk agreed to be subject to personal jurisdiction in Delaware when he chose to do the deal in Delaware.  “Despite the plaintiff’s many interesting arguments, compelling narrative, and clear economic loss, the plaintiff’s claims fail for a host of legal reasons,” the Court explained.

The opinion is worthwhile reading for its fresh look at the requirements to prove claims commonly made by disgruntled investors who bought into volatile merger deals in progress.

Background

According to the Court’s decision, in April 2022, Musk agreed to acquire Twitter for $54.20 a share and merge it into his X Holdings II, Inc. as part of parent X Holdings I, Inc. and the next day retail investor ATM Shafiqul Khalid acquired 149,500 shares of Twitter at an average price of $49.46, for a total purchase of $7,393,555.70.  But in the next month Musk appeared to sour on the deal and filed a notice of termination, prompting Khalid to sell all his shares at an average price of $36.90, for $5,517,113.14 –a loss of $1,876,442.56.

After Twitter sued Musk in Chancery for specific performance in July, the parties reached an agreement and voluntarily dismissed the action two months later–the deal was on again.  After unsuccessful attempts to intervene in that suit and another shareholder action, Khalid filed his complaint in April 2024, and the next month defendants moved to dismiss on a variety of grounds. 

Defendants were successful on all counts

Personal jurisdiction

Under Chancery Rule 12(b)(2), the plaintiff bears the burden of showing a basis for the court’s exercise of jurisdiction over the defendant.  “If, as here, no evidentiary hearing has been held, plaintiffs need only make a prima facia showing of personal jurisdiction, and ‘the record is construed in the light most favorable to the plaintiff,” the Chancellor said.

But even so, Delaware courts use a two-step analysis in which they first “determine that service of process is authorized by statute,” and then, the defendant must have certain minimum contacts with Delaware such that the exercise of personal jurisdiction “does not offend traditional notions of fair play and substantial justice.”

Plaintiff claimed personal jurisdiction over Musk via Delaware’s Long Arm Statute under 10 Del. C. § 3104(c)(1) because he committed to a forum selection clause to settle disputes that might arise in the merger negotiations. 

But the Court concluded that at most, Musk was only a limited third party to the merger contract and the plaintiff failed to plead that: “(i) the contracting parties . . . intended that the third party beneficiary benefit from the contract, (ii) the benefit [was] intended as a gift or in satisfaction of a pre-existing obligation to that person, and (iii) the intent to benefit the third party [was] a material part of the parties’ purpose in entering into the contract.”

The Court concluded that Musk was not subject to jurisdiction regarding plaintiff’s alleged stock losses because while all losses and damages suffered as a result of the failure of the merger transaction were covered, the transaction did not fail; it closed on the agreed terms.

Breach of Contract and Implied Covenant

These charges were dismissed because the Court determined that Plaintiff had no standing to assert them.

Promissory Estoppel 

Plaintiff claimed that Defendants (through Musk) made a promise to buy Twitter and later broke that promise by seeking to terminate the Merger, but the court said under Delaware law, “[p]romissory estoppel does not apply . . . where a fully integrated, enforceable contract governs the promise at issue.”

Breach of Fiduciary Duties 

Plaintiff alleged that Defendants drove Twitter’s stock price down so that Musk could renegotiate and mark down the merger consideration, but the Court ruled that “setting aside the issue of whether Defendants owed any fiduciary duties, Plaintiff forfeited his right to claim breach of fiduciary duties when he sold off his shares. “

Unjust Enrichment 

Plaintiff claimed that Defendants created a valuable option to negotiate a $13 billion discount by tweeting about Twitter users and were thereby unjustly enriched.  The court dismissed because Delaware law requires a direct relationship between the defendant’s alleged enrichment and the plaintiff’s alleged harm “to ensure that a court accurately can reverse the unjust retention of a benefit to the loss of another.”

Negligent Misrepresentation

The Court dismissed this charge, finding that ‘to state a claim for equitable fraud or negligent misrepresentation, a plaintiff must allege either “a special relationship between the parties over which equity takes jurisdiction (like a fiduciary relationship)” or “justification for a remedy that only equity can afford.”  However, the court added, “Plaintiff does neither here. He did not enjoy a fiduciary or other special relationship with Defendants. And he has not identified any remedy that only equity can afford.”  For similar reasons the court dismissed claims of common law fraud, consumer fraud and negligent performance.

Resuscitation unlikely

Finally, the Chancellor denied plaintiff’s motion for leave to amend his pleading, finding that, “This Court may relax Court of Chancery Rule 15(aaa) in the exceptional case, but this is not an exceptional case. Plus, given the legal defects in Plaintiff’s claims, it is unclear what Plaintiff might allege to resuscitate his claim.” 

This post was prepared by Andrew A. Ralli, an associate in the Delaware office of Lewis Brisbois.

When a time-stamped date of a court filing is important (e.g., complying with a scheduling order filing deadline) and the Register in Chancery rejects the electronic filing for some clerical reason, what remedy is available to obtain a time-stamp from the Court for the specific date of the initial (attempted) filing?  This short blog post outlines the answer provided under Court of Chancery Rule 5–which should not confused with Rule 5.1 that deals with a confidential filing.

Every filing in a newly-filed or pending civil action in the Court of Chancery needs to be electronically filed via File & ServeXpress. As discussed in a leading Delaware treatise: “The procedures and protocols applicable to electronic filing in the Court of Chancery are multifaceted and complex . .  . eFilings may fail because of technical or system problems or because they are rejected by the Register in Chancery due to filing defects or failure to comply with Court Rules. In some cases, a party may not learn until the next business day that the filing has been rejected by the Register in Chancery because of a defect.” Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate & Commercial Practice in the Delaware Court of Chancery § 1.10 [at 1-33] (2d ed. 2025) (citations omitted)(cleaned up).  

In practice, some of the technical problems surrounding eFiling issues can be resolved among the parties. If the parties are unable to do so, however, Rule 5 provides that:

“The Court may deem, upon satisfactory proof, that a paper was served or filed on the date of the first attempt at electronic service or filing if the first attempt was unsuccessful due to:

(1) an error in the transmission of the paper to the electronic filing system that the filer did not know about or could not resolve;

(2) a failure by the electronic filing system to process the paper;

(3) rejection by the Register in Chancery; or

(4) other technical problems.”

Ch. Ct. R. 5(e). See also Administrative Directive of the Chancellor of the Court of Chancery of the State of Delaware, Amended No. 2003-1, eFile Administrative Procedures, ¶ 10;  Best Practices and Procedures for eFiling/Filing with the Register in Chancery, available at https://courts.delaware.gov/help/proceedings/chancery.aspx (last visited Jun. 10, 2025).

Although this option in the Court of Chancery is not well known, the Court recently relied on Rule 5 and granted Plaintiffs’ Motion to Change the Filing Date in several related new actions filed on the same date: Fritz R. Kundrun et al., v. AMCI Group, LLC, et al., C.A. No. 2025-0563 JTL; Fritz R. Kundrun, et al. v. AMCI Group, LLC, et al., C.A. No. 2025-0567 JTL; and Fritz R. Kundrun v. AMCI Group, LLC, C.A. No. 2025-0570 LM (D.I. 14; Trans. ID 76365934).  

The Plaintiffs filed these three separate complaints, in related cases, in the Court of Chancery on May 20, 2025. After the Register in Chancery rejected them the next day for clerical reasons, Plaintiffs re-filed the complaints the following day. 

Plaintiffs then filed separate Motions to Change the Filing Date pursuant to Rule 5. The Court granted the motions, deeming the complaints filed on May 20, 2025. See Order, C.A. No. 2025-0563 JTL, May 28, 2025, at D.I. 4, Trans. ID 76354208; Order, C.A. No. 2025-0567 JTL, May 29, 2025, at D.I. 8, Trans. ID 76358017; Order, C.A. No. 2025-0570 LM, May 30, 2025, at D.I. 14, Trans. ID 76365934.

A recent Delaware Court of Chancery decision is noteworthy for its deep dive into the doctrinal underpinnings of the various aspects of fiduciary duties, as well as the difference between the standard of conduct and the standard of review. But my favorite part of the opinion is its discussion of the nuances of duty of candor. Slip op. at 65-70. This core duty receives less attention in most corporate decisions than the other aspects of fiduciary duty. In Leo Investments Hong Kong Limited v. Tomales Bay Capital Anduril III, L.P., C.A. No 2022-0175-JTL (Del. Ch. June 30, 2025), the Court determined that even though there was a breach of the fiduciary duty of candor, because no damages were proven, the court awarded nominal damages of $1.

Key Point

The real damage done to the defendant was reputational harm based on the Court’s finding, and I paraphrase, that the defendant fund manager was not forthright with his investment partner. The court even went so far as to suggest, and I paraphrase, that because of his “callous” conduct in this case future investors should “think twice” about future investments with the defendant fund manager. Slip op. at 59. Ouch.

Even though the decision has only been out for about a week or so, already two leading corporate law professors have written insightful and scholarly analyses of the opinion, with reference to their prior writings, as well as links to the scholarship of Professors Lyman Johnson and Ed Rock, and in particular the extent they discuss the role of Delaware courts in publishing detailed morality tales or parables, as a teaching tool and to provide guidance to fiduciaries and their lawyers. This opinion is an example of such a parable.

Moreover, as in this case, when there is public shaming of the person who breached fiduciary duties, and even if, as here, meaningful damages were not awarded, the public criticism may have more of an impact on the defendant involved in this case who might suffer more long term negative consequences from the opprobrium in this opinion as compared to the court merely awarding damages of a monetary nature, which some of the wealthier among us may consider a cost of doing business.

Key Background Facts

The key facts of this case involve a fund manager who solicited investments to buy stock in SpaceX. The fund manager knew that SpaceX was unlikely to accept investments from investors based in mainland China, for reasons including its sensitive government contracts involving national security. The fund manager accepted the investment from a publicly traded company based in mainland China knowing that that investor would have to make disclosures about the investment having a connection with SpaceX. But the fund manager was not candid with the investor about SpaceX being unlikely to accept a Chinese investor because the fund manager wanted to get the money for his fund.

Once SpaceX found out about the Chinese investor, they prohibited the fund from buying SpaceX stock. The fund manager essentially refunded the $50 million investment which caused negative publicity for the Chinese investor in light of the prior announcement by the Chinese investor that they would invest in SpaceX—and a resultant drop in stock price for the publicly traded investor based in mainland China.

Highlights

A lengthy law review article could be written on the analysis of why the fiduciary duty of loyalty, good faith, and care were not breached in this case and why.

But the most memorable aspect of the case for purposes of this short blog post is the analysis of the duty of candor once communication with a beneficiary was initiated. Slip op at 65-70.

As indicated above, another noteworthy aspect of this decision is the award of nominal damages for breach of the duty of candor, even though no measurable monetary damages were proven, based in part on the contractual right of the fund manager to redeem or return the investment, which was refunded within a very short time after the investment was received.

As discussed by Professor Ann Lipton and Professor Stephen Bainbridge, the public shaming aspect of this opinion, which undoubtedly will make the fund manager involved suffer reputational harm, is a theme that both professors comment on extensively in connection with their description of the role of Delaware courts as moral arbiters of sorts who provide guidance to those whose conduct as managers of Delaware entities is subject to the enforcement of fiduciary duties by Delaware courts. The good professors describe some Delaware court decisions as cautionary tales and a “teaching moment” with examples of “what not to do” as a fiduciary governed by Delaware law.

Dan Kahan was an early proponent of the benefits of shaming, but according to Professor Bainbridge has recently changed his perspective on the matter.

There is much to digest in this opinion and much more to comment on, but this short overview should whet the appetite of those who need to know the latest iteration of Delaware corporate law on this topic.