Delaware Corporate Law 2023 Year in Review

2023 was a significant year for the Delaware courts. The Delaware Supreme Court added two new members, Justice Abigail M. LeGrow and Justice N. Christopher Griffiths, to fill the vacancies created by Justice Montgomery-Reeves and Justice Vaughn’s departures from the Court. Justice LeGrow joins the Supreme Court with extensive judicial experience, having served as a Superior Court Judge since 2016 in its Complex Commercial Litigation Division. Prior to that, she was a Master in Chancery from 2011 to 2016, coming to the bench from Potter Anderson. Justice Griffiths joined the Court from Connolly Gallagher LLP, where he was a partner specializing in litigation, administrative and municipal law, and bankruptcy.

Meanwhile, the Court of Chancery completed its first year with ten members. The increase in the Court’s size has been welcome with the Court’s caseload continuing to increase — having over 1,300 cases filed in 2023. The Delaware judiciary has continued to explore ways to manage this growing caseload. In February, the Supreme Court issued an order permitting the judges sitting on the Superior Court’s Complex Commercial Litigation Division to serve as temporary Vice Chancellors in actions filed pursuant to 8 Del. C. § 111, the statute that gives the Court of Chancery jurisdiction over actions interpreting or enforcing agreements by Delaware corporations relating to the sale of stock or the sale of assets requiring stockholder consent. The members of the Complex Commercial Litigation Division are all experienced and sophisticated jurists well-suited to handle these disputes. The Court’s increasing workload has also come at the same time as it has seen more high-profile, expedited cases that have garnered substantial public interest, including the AMC stockholder litigation over which Vice Chancellor Zurn ably presided.

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The Court of Chancery has also sought to make other improvements, including by commencing a multi-year project to update its rules, issuing amendments to fifteen rules in September. The Court expects to issue more amendments in tranches before completing the project in 2025.

2024 promises to be another significant year for Delaware corporate law. Of particular note is that the Supreme Court is expected to issue a ruling in In re Match Group, Inc. Derivative Litigation in which it is expected to opine on the applicability of the business judgment review in non-squeeze out transactions involving a controlling stockholder where there is either approval by a special committee of independent directors or the holders of a majority of the disinterested and independent stockholders, or whether both prophylactic measures would be required for the business judgment rule to apply under MFW. Many are hopeful that this opinion will provide guidance for corporate boards and their advisors in transactions involving controlling stockholders moving forward.

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Potter Anderson & Corroon LLP is one of the largest and most highly regarded Delaware law firms, providing legal services to regional, national, and international clients. With more than 100 attorneys, the firm’s practice is centered on corporate law, corporate litigation, intellectual property, commercial litigation, bankruptcy, labor and employment, and real estate.