• The Delaware House of Representatives passed a bill that would make it harder for shareholders to sue corporations’ most powerful leaders.
• Supporters of the bill say the changes are necessary to give corporations more predictability and consistency.
• Critics argue that the changes will handcuff the ability of Delaware’s Chancery Court to police deals involving conflicts of interest.

The Delaware House of Representatives on Tuesday night overwhelmingly passed a controversial rework of the state’s corporate code.

Delaware’s corporate laws govern the management of most of the nation’s top corporations, and the amendments passed by the legislature Tuesday will make it harder for shareholders to sue companies’ most powerful leaders for self-dealing and transactions that include conflicts of interest.

The overhaul has been the most controversial initiative in this year’s General Assembly, seeing debate from national media headlines to mail sent to everyday Delawareans.

The bill has been championed by new Gov. Matt Meyer as well as Democratic leaders in the General Assembly. They say the changes are a necessary course correction that will give corporations’ most powerful managers more predictability and consistency as they consider business transactions.

To justify the change, proponents have argued that the future of Delaware is at stake, forecasting an exodus of business activity that underpins the state’s relatively low taxes, lack of sales tax and funds more than a quarter of state government annual expenses.

Meyer swiftly signed the bill after its House passage Tuesday night, saying in a press release the bill would “protect state revenue” that funds all aspects of local government.

Critics, which include corporate law academics, institutional investors and attorneys that represent shareholders, contend that doomsday prophecies about an exodus of companies and corresponding loss of state revenue are a mirage created to justify what one attorney described as a “nakedly corrupt hand-out to billionaires.”

They argued the changes would handcuff the ability of Delaware’s famous Chancery Court to police deals involving conflicts of interest, ultimately giving influential business leaders greater leverage to benefit themselves at the expense of pensioners, retirees and ordinary investors.

In sum, this will detract from Delaware’s status as the premier place to charter a business, critics argued, and lead businesses away from Delaware.

“I think it risks the future of the franchise. It risks federal intervention,” said Democratic state Rep. Madinah Wilson-Anton. “That would be, in fact, cooking that golden goose.”

The House hearing capped a month of debate that resembled national debates over the power and influence individual business leaders and billionaires have over the mechanics of government.

During Tuesday’s hearing, opponents unsuccessfully introduced several amendments aimed at bolstering protections for investors, as well as preventing the bill from undercutting ongoing shareholder investigations into potential past misdeeds by powerful individuals at companies like Meta − Facebook and Instagram’s parent company.

What the bill does

Delaware is the legal home to some 2 million corporations, about 60% of those in the Fortune 500. The corporate laws on the state’s books, in turn, govern the rules by which the nation’s largest corporations govern themselves.

When shareholders feel they’ve been taken advantage of by powerful people within companies, they take those claims to the Delaware Chancery Court, which serves as a check on mismanagement. Its speed, consistency and judicial expertise in evaluating such claims is said to be one reason Delaware is the primary place to charter a business.

Previously: Controversial Delaware corporate law overhaul passed by Senate, heads to state House

The law passed Tuesday deals specifically with how Chancery Court can police deals cut by a company’s most powerful shareholders, like Mark Zuckerberg of Meta, when there is a conflict of interest. These individuals are referred to in the law as “controlling stockholder” or “director.”

The changes amend how a controlling stockholder is defined, lower the hurdles they must jump through to execute a potentially conflicted transaction, and curtail information available in so-called “books and records” requests. These requests are used by aggrieved shareholders to obtain documents, files, meeting minutes and communications to investigate their claims.

Attorneys involved in drafting the legislation say that over the years, the legal definitions of controlling stockholders, what books and records are, and other concepts affected by the legislation have been expanded by Chancery Court rulings. This has caused uncertainty when business managers are evaluating potential company transactions.

The sentiment is that Delaware feels “less predictable, less stable, less business friendly” and that there is a “much more litigious environment,” said Amy L. Simmerman, partner at Delaware firm Wilson Sonsini and advocate of the bill, at a House committee hearing last week.

This has caused more companies she counsels to question their future in Delaware, she said.

So the purpose of this legislation is to provide more predictability and balance where recent court decisions have caused confusion, said Lawrence Hamermesh, a corporate law expert who helped draft the bill.

But opponents have argued the legislation will reduce the role of Chancery Court policing bad transactions, overturn decades of court precedent and allow controlling shareholders greater leverage to engage in conflicted company transactions at the expense of other shareholders.

It will also further the idea that powerful business people can simply turn to a pliable state legislature for relief when they don’t agree with a Chancery Court decision, opponents said.

Amendments fail on House floor

Multiple amendments debated on the House floor Tuesday were aimed at preserving aspects of Delaware case law that Wilson-Anton, author of those amendments, argued would continue to provide protections for investors.

“We are dealing in dangerous territory,” Wilson-Anton said.

Each failed after they were labeled as “unfriendly” by the bill’s House sponsor.

Another amendment would have made the proposed changes apply only if individual companies’ shareholders voted to adopt the changes.

Democratic state Rep. Sophie Phillips, the amendment’s sponsor, told legislators the bill has generated a “bad look for our state” and that the amendment would reflect a “compromise.”

Robert Jackson, a law professor at New York University and former commissioner of the U.S. Securities and Exchange Commission, was called as a witness by Phillips.

He argued that without amendment, the bill changes law that has worked well for many Delaware-chartered companies for decades. An opt-in provision would give companies the flexibility to tailor the law to their needs or not, a hallmark of other aspects of the state’s corporate code, he said.

Democratic state Rep. Krista Griffith, the bill’s sponsor in the House, argued the amendment would impose a “tremendous amount of work” for companies to opt into the new rules, nullifying the purpose of the bill. Jackson countered that opting into the rules would carry the same process as reincorporating outside of Delaware and without the downsides that come with such a move.

Jackson’s testimony was ultimately cut off by House Speaker Melissa Minor-Brown, who accused him of speaking too much about the bill itself and not the amendment, which ultimately failed.

Questions over motive for corporate law changes

Another amendment was aimed at criticisms thrown at the General Assembly about motive.

Absent data showing any exodus of Delaware companies is afoot, opponents have argued the changes are actually at the behest of a few powerful business leaders like Zuckerberg at Meta.

In February, news leaked to the Wall Street Journal that Meta was considering leaving Delaware. Shortly after, tech company Dropbox and Pershing Square Capital Management, an investment firm, made similar rumblings.

Secretary of State Charuni Patibanda-Sanchez has said these rumblings began the conversation that led to the legislation.

Public records first reported by CNBC showed a Saturday meeting organized by the Meyer administration with state legislators and corporate attorneys the day after the Meta leak was published and then a meeting with Meyer and Meta officials organized for the following day.

Over the subsequent weeks, the bill was drafted by Hamermesh, also an attorney at Richards, Layton & Finger, as well as former Chief Justice of the Delaware Supreme Court Leo Strine Jr. and former Court of Chancery Chancellor William Chandler III, both of whom now work for firms that typically defend against shareholder lawsuits.

On the House floor Thursday, Rep. Frank Burns noted he was aware of two pending shareholder investigations into Meta that could become lawsuits and could be undercut by the changes.

Mounting criticism: Attorneys, academics criticize proposed corporate law changes at hearing

The change passed by legislators Tuesday would apply to any previous company transactions that are not subject to any lawsuit or court ruling as of February, potentially undercutting any lawsuit that flows from a current investigation into past transactions.

“The last thing that Delaware should have is the impression that by passing this law, we intervened in some way that may have benefited some company,” Burns said, presenting an amendment that would make the new rules only apply to transactions occurring after the bill’s passage.

Griffiths, the bill’s House sponsor, also described this amendment as “unfriendly” and argued it would cause confusion and go against the point of the bill: to make things “clearer for corporations.”

Burns replied that it would be less confusing and more fair to have past transactions governed by the law in effect at the time and future transactions governed by the new law.

This would be more “honorable and clean,” and “takes us out of being accused of having done something that would intervene in some ongoing investigation,” he said.

That amendment also failed.

Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com.

Debate on the bill