J.W. Verret, Pandora’s Ballot Box, or a Proxy With Moxie? The Majority Voting Amendment to Delaware Corporate Law

Much of the academic discussion on shareholder voting rights focuses on the merits and demerits of the SEC’s recent shareholder access proposal or variations thereof.  The states’ efforts to reform director elections have received far less attention.  Because state-led reforms inevitably respond to and influence reform efforts at the federal level, this oversight is unfortunate. 

A forthcoming Business Lawyer article by Jay Verret seeks to fill this gap.  The article explores the impact and reform potential of Delaware’s recent legislative amendments aimed at facilitating “majority voting” rules for director elections.  Here is the abstract: 

The Delaware General Assembly has recently adopted a provision to the Delaware General Corporation Law which provides that where shareholders have adopted a majority voting bylaw for corporate elections over the traditional plurality scheme, a corporation may not subsequently amend its bylaws to return to plurality voting without shareholder approval.

I will compare this provision to other approaches and try to explain the reasons underlying its adoption. I will also briefly summarize the evolving shareholder empowerment debate and analyze the majority voting provision in the context of that discussion. I will then describe some unique and unanticipated interactions between majority voting bylaws and various other working parts of corporation and securities law affecting the shareholder franchise, a carefully protected right in Delaware jurisprudence. The most prevalent corporate strategies responding to this movement will be explored and the difficulties of implementing majority voting will be described.

Finally, I will analyze voting schemes from the political sphere to generate analogous lessons for the corporate arena. I will then end with some predictions about future developments which will hinge on the outcome of SEC rules proposals, further DGCL revisions, and the responses of Delaware incorporated entities. This analysis blends three distinct groups of thought i) Theoretical corporate law scholarship, especially on the general shareholder empowerment debate, ii) Analysis of Delaware Court of Chancery and Supreme Court cases, with a focus on those that directly implicate the shareholder franchise, and iii) Practical analysis on the future of the majority voting movement for Delaware incorporated entities, and the strategic choices facing boards of directors in light of online proxy solicitation, Exchange Rule 452, and the looming specter of corporate ballot access.

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