Below is a list of Delaware Supreme Court decisions that -- as far as I can tell -- would be overturned (or likely overturned) by SB21

NOTE: This list does not attempt to catalogue the (likely many more) Court of Chancery opinions that would similarly be affected

FEEL FREE TO SUGGEST ADDITIONS OR SUBTRACTIONS TO THIS LIST (Email or message me on LinkedIn)

Total Number of Overturns / Likely Overturns (at present):

holding that enhanced scrutiny applies notwithstanding the board’s independence and the use of the committee, if stockholders are not provided with material information

2018 WL 3326693 (Del. Ch. July 6, 2018), aff’d sub nom. Davenport v. Basho Techs. Holdco B, LLC, 221 A.3d 100 (Del. 2019)

holding that control is fact-intensive and that “[i]t is impossible to foresee all the possible sources of influence that could contribute to a finding of actual control over a particular decision”

Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC

holding that, in a non-Rule 23.1 context, “until this Court decides otherwise or a change is duly effected through the Civil Rules process, the governing pleading standard in Delaware to survive a motion to dismiss is reasonable ‘conceivability.’”

holding that minority stockholder vote was compromised because minority stockholders were not adequately informed of certain alleged conflicts of interest between the special committee's advisors and the counterparty, even though they were informed about the material economic terms of the transaction

holding that minority stockholder vote was compromised because proxy failed to adequately disclose the nature and extent of the special committee’s advisors’ conflicts

declining to hew strictly to NYSE/NASDAQ independence tests as a surrogate for determining director independence; evaluates independence without a “heightened” presumption of independence that can only be overcome by “substantial” particularized facts

requiring controllers to “self-disable” from the start of “substantive economic negotiations” to have both the controller and committee bargain under the pressures exerted on both by the protections

2021 WL 6012632, at *12 (Del. Ch. Dec.15, 2021), aff’d, 282 A.3d 1054 (Del. 2022)

holding the business judgment rule applies when a controlling stockholder standing on both sides of a deal agrees to condition the deal on a fully-empowered special committee and a vote of a majority of the unaffiliated stockholders; holding that listing rules are qualitatively different from and do not operate as a surrogate for the Court’s analysis of independence under Delaware law

holding that entire fairness review is a non-bifurcated and holistic analysis of fair price and process, including (i) 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 and (ii) all relevant price factors, including assets, market value, earnings, future prospects, and any other elements that affect value

requiring committees and unaffiliated stockholder votes in controller deals to be deployed ab initio to obtain business judgment review; that way (i) the controlling stockholder knows that it cannot bypass the special committee's ability to say no, (ii) the committee knows it needs to bargain hard to avoid an adverse stockholder vote, and (iii) the controlling stockholder knows it cannot dangle a majority-of-the-minority vote before the special committee late in the process as a deal-closer rather than having to make a price move

holding that, even when a transaction with a controller is negotiated by a special committee of independent directors, entire fairness applies because “no court could be certain whether the transaction fully approximate[d] what truly independent parties would have achieved in an arm's length negotiation”

___ A3d ___, 2025 WL 384054 (Del. Feb. 4, 2025)

holding the entire fairness standard of review applies in transactions between a controlled corporation and a controlling stockholder, when the controlling stockholder receives a non-ratable benefit

declining to hew strictly to NYSE/NASDAQ independence tests as a surrogate for determining director independence; evaluates independence without a “heightened” presumption of independence that can only be overcome by “substantial” particularized facts

559 A.2d 1261, 1280, 1283 (Del. 1989)

holding that entire fairness review is a non-bifurcated and holistic analysis of fair price and process, including (i) 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 and (ii) all relevant price factors, including assets, market value, earnings, future prospects, and any other elements that affect value; and holding post-closing liability for conflicted fiduciaries and relief is available when impartial board members do not oversee conflicted members sufficiently

holding that enhanced scrutiny applies notwithstanding the board’s independence and the use of the committee, if stockholders are not provided with material information; and that a minority stockholder vote was compromised because the company failed to disclose “troubling facts regarding director behavior . . . that would have been material to a voting stockholder."

holding use of committee shifted burden to plaintiff and did not change standard of review; and requiring controllers to “self-disable” from the start of “substantive economic negotiations” to have both the controller and committee bargain under the pressures exerted on both by the protections

declining to hew strictly to NYSE/NASDAQ independence tests as a surrogate for determining director independence; evaluates independence without a “heightened” presumption of independence that can only be overcome by “substantial” particularized facts

holding that entire fairness review is a non-bifurcated and holistic analysis of fair price and process, including (i) 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 and (ii) all relevant price factors, including assets, market value, earnings, future prospects, and any other elements that affect value

AmerisourceBergen Corp. v. Lebanon Cnty. Employees' Ret. Fund

recognized a court’s discretion to order production of Informal Board Materials and Officer Materials, and that “”a stockholder is not required to state the objectives of his investigation” in addition to identifying and supporting a proper purpose.

holding emails are allowed: and “when a petitioner [i] reasonably identifies the documents it needs and [ii] provides a basis for the court to infer that those documents likely exist in the form of electronic mail, the respondent corporation cannot insist on a production order that excludes emails even if they are in fact the only responsive corporate documents that exist and are therefore by definition necessary”

upholding production of “informal board materials and officer-level materials” deemed “necessary because of specific and concrete allegations in the Amended Securities Complaint”

declined to impose a date restriction on § 220 requests, held that a stockholder could obtain documents “reasonably related” to the stockholder’s purpose, and explained that older documents can reasonably relate to a stockholder's current interests if it provides background and context to the current or ongoing wrong the stockholder seeks to investigate.

holding that the appropriate standard for a books and records request is a "credible basis" by a preponderance of evidence, which is the lowest possible burden of proof, requiring only the showing of "some evidence of possible wrongdoing"