This top 10 list summarizes significant decisions of the Delaware Supreme Court and the Delaware Court of Chancery over the past calendar year. Our criteria for selection are that the decision either meaningfully changed Delaware law or provided clarity or guidance on issues relevant to corporate and commercial litigation in Delaware. We present the decisions in no particular order. The list does not include every significant decision, but provides litigants and litigators with an array of decisions on varied issues likely to affect business transactions or business litigation.
- No. 1: Marchand v. Barnhill, 212 A.3d 805 (Del. 2019) (Strine, Chief Justice); In Re Clovis Oncology Derivative Litigation, (Del. Ch. Oct. 1, 2019) (Slights, Vice Chancellor).
Under In re Caremark International Derivative Litigation, 698 A.2d 959, 969 (Del. Ch. 1996), the duties owed by directors of a Delaware corporation include the obligation to monitor operations, meaning to implement and oversee information and reporting systems and controls. But Delaware courts have long recognized that a Caremark theory of liability is one of the most difficult theories in corporate law for a stockholder plaintiff to plead and prove. That is because a plaintiff generally must pursue a theory of bad faith, which involves the board either utterly failing to implement any systems or controls or consciously failing to oversee their operation. Marchand and Clovis are significant because they illustrate the type of allegations that will enable a Caremark theory to survive dismissal.
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