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Lipton, the Tulane professor, cited the many complications: “Musk attacking the Delaware courts, his allies threatening to leave the state, and the state legislature on the verge of passing a new statute that reads like a direct rebuke to the Delaware courts.”

“It’s not clear to me whether that’s likely to influence the Delaware Supreme Court — in either direction,” she added.

What Musk and the Tesla directors are arguing in their appeal is that the lower court applied the wrong, heightened legal test to evaluate actions taken by Tesla’s board around the compensation plan.

They said McCormick incorrectly subjected the board’s actions to the “entire fairness” standard, then misapplied it. That standard is applied to protect shareholders when a controlling shareholder negotiates a self-interested deal with the board.

Musk’s status as a limited minority stockholder at the time of the negotiations, they said, should not have led to his designation as a controlling shareholder.

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New York University School of Law professor Marcel Kahan said the Supreme Court will decide what particular issues to address in the case and he suspects that it will want to clarify the definition of “controlling shareholder.”

That matter is now the subject of the controversial proposed legislation in Delaware to amend the state’s corporate law. The proposed changes would exempt shareholders with less than 33.3% ownership.

“My guess is the court will want to put its five cents in on ‘controller creep,’” Kahan said, referring to the court’s expansion of circumstances that can subject a shareholder to “controller” status.

“I would not at all be surprised if the court comes to a different finding on whether Musk is a controlling shareholder than the Chancery court,” Kahan added.

Musk and the Tesla directors are also arguing that McCormick’s invalidation of a second Tesla shareholder vote about Musk’s compensation constituted yet another error because the vote showed that the electric vehicle company’s shareholders “resoundingly rejected” her initial finding that Musk was overpaid.

The fact that Tesla stockholders have since received a return of more than $700 billion on their investment in Musk, they said, shows the compensation plan exemplified alignment between executive and stockholder interests.

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With McCormick’s decision, shareholders “have lost their say in compensating the company’s once-in-a-generation CEO” and “lost certainty in the company they own.”

“The bottom line of the Court of Chancery’s decisions is that a compensation plan resulting in spectacular growth should be revoked because it was somehow unfair to the very stockholders who benefited from that growth and overwhelmingly approved the plan — twice.”

For Musk to keep his $56 billion, said Kahan of New York University, the court would have to reverse both McCormick’s finding that Musk was a controlling shareholder at the time he negotiated his pay deal with Tesla’s board and her finding that the shareholder revote failed to “cleanse” — take steps to legally validate — the flawed transaction.

As for cleansing, he said, “I can see the court saying, ’You were a little too tough here.’” Cleansing solely shifts the burden of proving whether $56 billion was fair from the defendants to the plaintiffs.

“If $56 billion is too high, it doesn’t follow that zero is the right amount, right? Zero may be too low.”

In that case, the court could send the case back to the lower court and instruct it to pick an amount of fair compensation.

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Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on X @alexiskweed.

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The University of Delaware Blue Hens’ hot streak came to an end Tuesday night.

The men’s basketball team was one game away from securing the CAA title, which would have guaranteed them a place in the NCAA tournament.

Students on campus are disappointed but said it was an unforgettable, historic run.

The game came down to the wire. 

“I was on the edge of my seat the whole time,” junior Roan Hurley said.

Delaware took on UNC-Wilmington Tuesday night in a nail-biter of a game. The Blue Hens lost, 76-72.

Students packed Grotto Pizza to watch.

Many said they thought the game might end in their favor as the team battled it out until the very last buzzer.

“I really thought we had it for a minute there,” senior Casey Toner said.

“I really loved how our Blue Hens balled out. They put on a great performance,” junior Michael Driscoll said.

Students said despite the loss, this season has been a thrilling ride and they believe the team is just getting warmed up for next year.

“I am proud of our guys, and we will be back next year,” senior Michael Scimeca said.

And while it didn’t end the way they hoped, many said it was a season worth remembering.

“As seniors, any game we get to come together for is awesome,” senior Meg Buckley said.

“Even though we didn’t win, it felt really nice to be a part of this community that was so excited to see our team go so far,” senior Anna Gleason said.

Marijuana business owners, users and advocates from around Delaware gathered in Dover on Tuesday morning to push the state government to allow businesses to open nearly two years after recreational weed was legalized.

More than 40 people organized by the Delaware Cannabis Industry Association stood outside Legislative Hall holding signs and listening to speeches. They said the state is allowing unsafe and unregulated marijuana to be purchased and used while a regulated statewide industry sits in limbo. Recreational, adult-use marijuana was legalized in 2023, but businesses have yet to open their doors.

All licenses have been handed out for now through lotteries. Now, background checks on all of the winners, including the seven licenses allowing for conversion from medical to recreational marijuana, are being done. According to the Office of the Marijuana Commissioner, the fingerprinting authorizations from Delaware State Police through the State Bureau of Investigation still need approval from the FBI. Those fingerprints are part of the required criminal background check performed on everyone awarded a license.

Any lottery winners who pass the current background checks will be given a conditional license. If they cannot become fully operational within 18 months, the license is likely to be rescinded. If they become operational, they are awarded an active license and can continue.

But, patience is wearing thin for business owners who want to get the industry up and running. James Brobyn, CEO of marijuana business American Fiber Co., called on Gov. Matt Meyer to either empower current acting Commissioner Paul Hyland or choose another commissioner. Rob Coupe, the state’s first commissioner, stepped down before Meyer took office.

“That’s literally the the legal hurdle that has to happen to just turn the switch on,” Brobyn said outside of Legislative Hall.

More: Delaware marijuana industry in background check phase; new licensees still starting up

A spokeswoman for Meyer’s office said the governor understands the urgency of nominating the next marijuana commissioner and that Meyer has been a supporter of recreational and medical marijuana.

“It’s critical we select the best person to lead the state’s program,” the spokeswoman for Meyer said. “Not only for those looking to open businesses in Delaware, but for communities that have long been victims of war on drugs and medical patients forced to live in the shadows for decades. We can and will do better in Delaware to ensure we have an equitable and thriving marijuana industry.”

Originally, the plan to open marijuana retail in Delaware was spring 2025. That time has come, and businesses have not been opened or converted. The OMC said the decision to open the existing medical businesses who applied for conversion licenses ahead of the lottery winners will be up to whoever is the next commissioner.

County and city-level zoning stifles business owners

State law allows counties to regulate the recreational marijuana industry however they want without banning it. New Castle and Sussex counties have approved additional buffer zones around churches, schools and residences on top of existing state-required barriers for businesses. Municipalities can outright ban it, and many towns at the beaches have done so.

In Sussex County, 3-mile buffer zones around municipality borders, churches and schools and more have choked off marijuana businesses to a point where they cannot confidently operate in the few places in the county available.

Jen Stark, owner and director of processing at The Farm medical marijuana dispensary in Felton and New Castle, lives in Bridgeville and cannot open inside or outside of its municipal borders.

“All they have in Sussex for retail is a piece of paper; it means nothing,” she said.

Louise Shelton of New Castle was awarded a social equity cultivation license in New Castle County. She said finding a location in the county to operate is her biggest challenge. She is new to the industry and wanted to grow the plant because it has had positive effects on her family members, she said. Now, she cannot get anyone in commercial real estate to help her find a location.

“We’re just kind of at a stalemate right now,” Shelton said in Dover on Tuesday. “How do you give us licenses if you’re not going to take care of the zoning?”

Shelton also has a social equity cultivation license in Sussex County, where she said it has been frustrating. She said the main complaints have been about the smell and use of marijuana, despite her business just growing the plant itself.

“Just because weed is recreational doesn’t mean we can just walk down the street smoking it,” Shelton said. “We know the laws and will abide by them.”

Stark looked at Kent County’s regulations as a model for what the rest of the state should look like. Kent County is regulating where businesses can operate, similar to liquor and tobacco businesses. Stark hopes the Legislature will take another look at the zoning restrictions allowed by state law.

“I really hope that they can write legislation and get it passed through the House and Senate; otherwise, it’s just going to be crippling to the industry,” she said.

Social equity license winners run into same problems as open retail

Social equity licenses were intended to give areas disproportionately affected by past drug-related enforcement and individuals with past marijuana convictions a chance to get in on the industry. Social equity applications came at a discounted rate of $1,000. Open applications cost $5,000 and micro-level applications cost $3,000.

Conversion licenses were awarded at $200,000 for cultivation and $100,000 for retail and manufacturing. The state made $4 million from them, which helps to fund social equity grants for business owners.

Darnell Martin of Wilmington said he plans to be in the next lottery for a social equity license. He said local governments are treating the recreational marijuana industry unfairly.

The Wilmington City Council recently passed a three-month pause on marijuana business licenses in the city while they figure out the proper zoning around the businesses. Martin said they should have it figured out because people have smoked marijuana for decades.

“They are treating it like it’s the zombie apocalypse,” he said.

More: Wilmington City Council enacts 90-day hold on marijuana retail licenses

Shane Brennan covers New Castle County with a focus on Newark and surrounding communities. Reach out with ideas, tips or feedback at slbrennan@delawareonline.com. Follow @shanebrennan36 on X, formerly Twitter.