So as long as we’re talking about semi-annual vs quarterly reporting – It has long been observed that the disclosure obligations of the federal securities laws function as sub rosa substantive governance regulation. The obligation to report necessarily carries with it an obligation of oversight; you can’t report what you don’t know.

Thus, a switch to semi-annual reporting may not simply mean less information to investors; it loosens the obligations of boards, and managers, to oversee the company. 

A new paper by Anne Tucker and Timothy Lytton demonstrates this point in the context of mutual fund disclosures.  After interviewing a variety of market players, including investment advisers, fund managers, compliance officers, and fund counsel, they conclude that it’s less important whether anyone reads the disclosures than the fact that the process of drafting them triggers legal and professional norms which end up substantively shaping mutual fund products.

We can extend the reasoning to the SEC’s announcement that it would pull back on enforcement over things like “retention of books and records, that consumed excessive Commission resources not commensurate with any measure of investor harm.”

Sure, maybe each individual violation doesn’t result in investor harm, but when companies know the “small” stuff won’t be sweated, they don’t build out the compliance capacity that’s necessary to catch the big stuff. (Unrelated: After replacing multiple general counsels at Tesla, Elon Musk has apparently abandoned the concept at SpaceX.)

Unfortunately, though – if the SEC does permit semi-annual reporting – there’s not a lot anyone can do to challenge it.  When the SEC adopts new regulations, the regulated entities can sue, claiming that the regulation was irrational or otherwise improper.  When it repeals them, though, it’s hard to imagine who would have standing to bring a claim, no matter how irrational the process.

There is no other thing.  No new Shareholder Primacy podcast this week; back soon!

I am pleased and proud to report the recent publication of an article I coauthored last year with a former student, Cody Dethlefs, for the Stetson Law Review‘s 2025 symposium on Prosecutorial Discretion & White Collar Crime. The article, The Fraud Remains the Same . . . Or Does It?, explores blockchain frauds, combining my experience with securities regulation considerations and Cody’s with bank regulation. The SSRN abstract is as follows:

Although blockchain technology has proven itself to be useful and has significant potential for expanded usage, certain blockchain applications pose fraud and systemic risks. This article identifies and assesses financial fraud committed in or in connection with blockchain transactions as a form of white-collar crime. In some cases, criminal activity is facilitated—or even originated—by blockchain technology. Yet in other cases, criminal activity is merely hosted on a blockchain. Law enforcement activities relating to blockchain fraud are similarly both conventional and unique.

As the blockchain environment expands, fraudsters will indisputably continue to innovate. It will be incumbent upon enforcement agents to keep pace in an environment complicated by rapid technological advances, privacy and security protections, and cross-border activity. Increasing reliance on blockchains for financing and other elements of global commerce makes blockchain regulation and enforcement a high priority for the United States and other governments around the world.

Our work on this fascinated both of us. The scope and extent of blockchain fraud offers many intersections with business and criminal law topics. I already have been able to use insights in my teaching. I hope the work is also useful to some of you.

The pace of announcements has slowed a bit since the last update. My list now has 36 entries, five more since the last update. We have also had some significant vote results come in.

Company NameStock TickerOrigination StateDestination State
1. TruGolfTRUGDelawareNevada
2. Forian, Inc.FORADelawareMaryland
3. LQR HouseYHCNevadaDelaware
4. CBAK EnergyCBATNevadaCayman Islands
5. Cheetah NetCTNTNorth CarolinaDelaware
6. GalectoGLTODelawareCayman Islands
7. Resolute Holdings Management, Inc.RHLDDelawareNevada
8. Forward Industries, INCFWDINew YorkTexas
9. EQV Ventures AcquisitionFTWCayman IslandsDelaware
10. Datadog, Inc.DDOGDelawareNevada
11. Haymaker Acquisition Corp 4HYACCayman IslandsDelaware
12. CDT EquityCDTDelawareCayman Islands
13. eXp World HoldingsEXPIDelawareTexas
14. ArcBest CorpARCBDelawareTexas
15. Texas Capital BancsharesTCBIDelawareTexas
16. ExxonMobil Corp.XOMNew JerseyTexas
17. NL IndustriesNLNew JerseyDelaware
18. ClearOne IncCLRODelawareNevada
19. Liberty Media CorporationFWONA, FWONB, FWONKDelawareNevada
20. The LGL Group, Inc.LGLDelawareNevada
21. TTEC Holdings, Inc.TTECDelawareTexas
22. Weatherford International plcWFRDIrelandTexas
23. Dream Finder HomesDFMDelawareTexas
24. Voyager TechnologiesVOYGDelawareTexas
25. GPGI, Inc.GPGIDelawareNevada
26. FirstCash Holdings, Inc.FCFSDelawareTexas
27. AerSale CorpASLEDelawareTexas
28. Natural Gas Services Group, INCNGSGColoradoTexas
29. Archer Aviation IncACHRDelawareTexas
30. Sonoma Pharmaceuticals, incSNOADelawareNevada
31. Samsara IncIOTDelawareNevada
32. Dell TechnologiesDELLDelawareTexas
33. Spruce Power Holding CorpSPRUDelawareTexas
34. King ResourcesKRFGDelawareNevada
35. Thunder Power HoldingsAIEVDelawareNevada
36. NexGel, Inc.NXGLDelawareNevada

Here is an updated sheet with everything I’ve collected so far. I’ve also had Claude generate some graphics.

Origin & Destination

Although I’ve been looking closely at the companies coming to Nevada or Texas to understand trends, I hadn’t closely looked at the companies going to Delaware to see if I could discern any patterns yet. The five companies picking Delaware so far this year are:

  • LQR House (NV –> DE)
  • Cheetah Net (NC –> DE)
  • EQV Ventures (Cayman –> DE)
  • Haymaker Acquisition Corp. 4 (Cayman –> DE)
  • NL Industries (NJ –> DE)

EQV Ventures and Haymaker are both de-SPACs from the Caymans to Delaware. I haven’t excluded them from the data set at this point, but if you put them to the side, we’re looking at 34 reincorporations with Texas at 15, Nevada at 12, and Delaware at 3, and the Caymans at 3.

Movement Over Time

This is a neat visualization. The first four announcements in the dataset are all late 2025 with votes happening in 2026.

Different Visualization on Origin & Destination

This visualization captures a big difference between Texas and Nevada. Texas has been picking up corporations from different places while Nevada has only picked up companies leaving Delaware.

Redomiciliation Count vs. Market Cap

This is another fun comparison. Texas and Nevada have the bulk of the movement and the money in terms of rough market cap. Of course, Exxon and Dell account for over 85% of the overall market cap here. Exxon is just a big one.

Approval Margins

Here, the approval margins are calculated as votes in favor as a percentage of votes cast. This chart does not include the moves via written consent.

I can refine my numbers after this for the next update. In contrast to my little chart here, Exxon’s 8-K shows Exxon as having secured 71.2% of the vote and this chart shows them at 61%. The difference is because Exxon calculated the percentage of votes in favor vs. against–as it should have. At the time, Exxon was a New Jersey corporation and New Jersey’s law runs on votes actually cast at a meeting. Delaware runs off of a majority of the outstanding equity so it’s going to be a higher hurdle.

How you calculate these percentages changes how we see what’s happening. My chart lumps abstentions and broker non votes together even though many companies break them out separately. I’m going to need to go back and update the chart to include total equity outstanding as a separate column after this.


Submissions are now open for the 2026-27 series of the online Law & Finance Workshop. Submissions are due by the end of the day on Friday, July 3, 2026.

The Law & Finance Workshop was launched in Spring 2025 to create a space for more frequent discussion of scholarly works-in-progress in the field of law and finance, and to foster community among scholars working in this area. The workshop meets online once per month during the fall and spring semesters and is open to all interested scholars. Each workshop features a paper presentation followed by comments from a discussant and Q&A with participants. 

We welcome submissions from scholars across all relevant disciplines that examine the role of law and regulation in finance broadly defined, including household finance, corporate finance, and public finance. Interested scholars should submit their abstracts using this form no later than EOD onFriday, July 3, 2026. Selected authors must be ready to make complete drafts of their papers available for distribution one week prior to the scheduled date of the workshop.  

We look forward to seeing you in the fall.

Nikita Aggarwal, Caroline Bradley, & George Georgiev (organizing committee)

Friend-of-the-BLPB George Mocsary recently made me aware of his fun essay reproduced below. He also cleverly generated the related above image using ChatGPT, noting in sending it to me that “Roger Sherman and Robert R. Livingston, who are the fictitious Treasurer and Secretary signing the bill, were part of the Committee of Five who drafted the Declaration of Independence. The other three were John Adams (on this mock-up), Thomas Jefferson ($2 bill), and Ben Franklin ($100 bill).”

I love all of this. It is always interesting to see what business law profs think about and do outside the norm of their teaching, scholarship, and service. Enjoy George’s essay!

++++++++++++++++++++

A Modern Currency for a Modern Economy: Retiring the Single, Embracing the Coin, and Thinking Bigger

George A. Mocsary

Every day, Americans reach into their wallets and pull out a piece of currency that is fundamentally failing them and their nation: the one-dollar bill. We hold onto paper out of habit, resisting the mathematical realities of our monetary system. As we navigate a modern economy, the United States relies on an outdated physical currency structure. It is time for a comprehensive overhaul of our cash.

To bring our currency into the twenty-first century, the United States should execute a multi-step reform. First, we should stop printing the $1 bill. Second, we should replace it with the far more durable $1 coin. Third, we should elevate the $2 bill to serve as our standard low-denomination paper currency. Finally, we need to print bills significantly larger than the $100 note—the $500 bill or a novel $250 bill to celebrate the nation’s 250th anniversary. This is not just a matter of convenience. It is a matter of fiscal responsibility and international competitiveness.


The Cost of the Paper Single

The romanticism attached to the one-dollar bill is blinding us to its economic inefficiency. We currently treat our lowest paper denomination as a disposable commodity. According to the Federal Reserve, it costs approximately 4.1 cents to print a single $1 note. While that may sound inexpensive, the hidden cost lies in its shockingly short lifespan.

Due to the intense wear and tear of daily transactions, a $1 bill has an estimated lifespan of about seven years. The Federal Reserve must continuously order billions of new $1 notes each year to replace the ones that have been damaged, mutilated, or worn beyond recognition. This creates an expensive cycle of printing, distributing, evaluating, and shredding currency. The Bureau of Engraving and Printing operates at maximum capacity to keep up, wasting millions of taxpayer dollars on a product designed to fall apart in less than a decade.


A Durable Alternative: The $1 Coin

The solution to the paper single’s inefficiency is already in our pockets: the coin. It is time to fully replace the $1 bill with the $1 coin.

Although minting a modern dollar coin costs the U.S. Mint roughly 12 cents, focusing solely on the initial production cost is short-sighted. The true metric of currency efficiency is its lifespan. A $1 coin’s estimated lifespan is at least 30 years. In the time it takes a single dollar coin to wear out, the Federal Reserve would have had to print, distribute, and destroy roughly four distinct $1 bills. Aggregating these costs across the billions of singles in circulation, the math becomes undeniable. Independent analyses, including past reports from the Government Accountability Office (GAO), have repeatedly indicated that transitioning to a $1 coin and retiring the paper note would yield large financial benefits for the federal government once the higher production costs of $1 coins are recouped after about six years.


Bridging the Gap: The Rebirth of the $2 Bill

A common objection to the $1 bill’s elimination is that Americans still want a small-denomination paper note for tipping, minor purchases, and general convenience. Carrying pockets full of metal can be cumbersome. Fortunately, the Treasury already produces the perfect compromise: the $2 bill.

By stopping the production of the $1 bill, the government can easily scale up the printing of the $2 note. This fulfills the public’s desire for a low-denomination paper option while cutting the printing and pocket volume of small notes in half. The $2 bill is already legal tender, already familiar to the public, and ready to be deployed. Elevating it from a novelty item to a transactional staple would ensure a smooth, painless transition away from the $1 note.


The Missing Tier: Why We Need Larger Denominations

While our lower denominations suffer from inefficiency, our upper denominations suffer from a different problem: inflation-driven irrelevance. Since 1969, the United States has not issued a bill larger than the $100 note. But what was once a symbol of wealth is now barely enough to cover a standard trip to the grocery store or a family dinner out.

The rest of the world has long understood the value of large-denomination physical currency. Even as digital payments rise, the Eurozone maintains high-value physical notes, including the widely used €200 note (and the €500 note, which remains legal tender even though issuance has stopped). Switzerland seamlessly circulates the 1,000-franc note. This high-value piece of currency acts as a highly trusted store of wealth.

These nations issue such large notes because physical currency, in addition to serving as a medium of exchange, is a vital store of value. The U.S. dollar is the world’s reserve currency. Billions of U.S. dollars are held overseas by individuals and institutions who trust the stability of the American government more than their own local banking systems.

When a government issues high-denomination currency, it benefits from seigniorage. Seigniorage is the difference between the cost of producing currency and its face value. It is profit made by a government by issuing currency, especially when that currency is held indefinitely as a store of value rather than actively circulated. $100 bills currently boasts a lifespan of 24 years, largely because people hoard them rather than spending them daily. Providing even larger denominations would increase this longevity and seigniorage benefit, firmly cementing the U.S. dollar as the premier physical asset in the world.


A Bold Proposal: The $500 Bill or the Semiquincentennial $250 Note

To address this glaring gap at the top of our currency ladder, the United States should resume issuing a $500 bill. It should instantly become the premier physical store of value, reducing the bulk required to hold cash reserves and generating unprecedented seigniorage benefits for the federal government.

However, if a leap straight to $500 feels too drastic for policymakers, there is a uniquely American alternative: the introduction of a new $250 bill, rolled out as a test to coincide with the nation’s 250th anniversary in 2026.

At first glance, a $250 bill might seem unorthodox. We are accustomed to currency scaling in units of ones, fives, tens, and multiples thereof. Yet the $250 bill would be remarkably easy for the American public to adopt for one simple reason: the quarter.

Americans have used the 25-cent coin for generations. The cognitive math required to use a $250 bill is identical to the math required to use a quarter, just scaled up: two quarters equal fifty cents; two $250 bills equal $500. Four quarters equal a dollar; four $250 bills equal $1,000. Because the fractional logic is already hardwired into the American consumer’s brain, the learning curve for a $250 bill would be practically nonexistent. Moreover, introducing it as a commemorative but fully functional circulating note for the Semiquincentennial would generate substantial public interest, driving adoption and excitement.


Efficiency over Nostalgia

The United States’ currency is perhaps the nation’s most recognizable symbol. But nostalgia should not trump economic efficiency. Printing paper $1 bills that tear and degrade in a mere seven years is a drain of resources for which the 30-year $1 coin offers a vastly superior alternative. By embracing the coin, reviving the $2 bill for small paper transactions, and finally acknowledging the reality of modern economics by introducing a $250 or $500 note, the United States can fundamentally modernize its monetary system.

The nation is capable of making these pragmatic adjustments. In late 2025, the United States Mint ended production of the penny, closing a 232-year chapter in American coinage. The rationale was simple and undeniable: spending nearly four cents to manufacture a one-cent coin was an unjustifiable waste of taxpayer resources. The public adapted quickly to the reality of cash rounding, proving that nostalgia is a poor excuse for bad economics.

It is time for the United States Treasury and the Federal Reserve to think bigger and mint smarter. The mathematical evidence is clear, the international precedents are proven, and the opportunity presented by the Semiquincentennial provides the perfect moment to build a currency system that reflects the strength, durability, and scale of the modern American economy.

No not that one.

I speak of the proposed redomestication of Natural Gas Corporation from Colorado to Texas. As Bloomberg reported, ISS recommended in favor of the move, even though it had recommended against Exxon’s move, which prompted accusations of opacity.

(Exxon, ludicrously, argued that Glass Lewis and ISS objected to its move because of their litigation over Texas’s proxy advisor law, conveniently ignoring that well before Texas moved to insulate corporate managers and instigated its war on proxy advisors, Glass Lewis objected to Tesla’s move, and ISS only tentatively recommended in favor, specifically on the understanding that Texas’s legal protections for shareholders were, at that time, comparable to Delaware’s. Also, I note, under Texas law – currently on hold on First Amendment grounds – merely for recommending a vote against management based on governance considerations, Glass Lewis and ISS would have had to announce publicly that they do not provide advice solely in the financial interests of shareholders and notify Ken Paxton of their recommendation.)

Anyhoo, ISS’s change of heart for Natural Gas is interesting and worth unpacking. Natural Gas Corporation currently has a staggered board, which can only be destaggered by an overwhelming vote of 80% of outstanding shares – an extremely high threshold that is difficult to meet in a public company. Directors can only be removed for cause, again with an 80% vote, and this provision, too, can only be eliminated with an 80% vote. But, when corporate law closes a door, some way it opens a window, and in this case, that window is, nothing in the charter or bylaws of Natural Gas Corporation require a supermajority to convert into a different entity: a conversion can occur by a simple majority vote. Of course, a conversion requires new organizational documents, which are treated as part of the plan of conversion. So, Natural Gas Corp proposes to convert to a Texas entity, and the new Texas organizational documents will remove the stagger, remove the supermajority vote requirements, and permit shareholders to remove directors with or without cause by a simple majority vote.

Natural Gas’s board is not proposing to adopt Texas’s opt-in limits on derivative litigation (i.e., to require the plaintiff to hold 3% of shares), or Texas’s limits on shareholder proposals (3% or $1 million holding requirement), but it isn’t – as ArcBest did – promising to never unilaterally adopt these provisions in the future. And, of course, Natural Gas’s board will automatically reap the benefit of Texas’s high threshold for insider liability, namely, a showing of “fraud, intentional misconduct, an ultra vires act or a knowing violation of law.”

Given the givens, ISS concluded that benefits to shareholders of the improved governance structure were worth the loss of other rights, which seems an entirely reasonable conclusion.

That said, it is worth noting that Natural Gas could have achieved the same benefits to shareholders by reincorporating to Delaware, and it certainly could have committed in its charter to never adopt Texas’s optional holding requirements for proposals and litigation. By choosing Texas, the board is offering shareholders a cynical trade: we’ll enhance your voting power in exchange for greater insulation from liability.

And another thing. New Shareholder Primacy podcast is up!  Me and Mike Levin talk about, naturally, the SpaceX S-1. Here at Spotify; here at Apple; and here at YouTube.

And still another thing. In connection with the release of his book, Corporate Power and the Politics of Change, Rutgers law professor Matteo Gatti is hosting a series of podcasts with corporate law professors exploring the book’s themes. Matteo was kind enough to invite me to participate; there are also – or will be soon – episodes with Stephen Bainbridge, Jill Fisch, Swarnodeep Homroy, Elisabeth Kempf, Katharina Pistor, Mark Roe, Veronica Root Martinez, Roy Shapira, Tim Smith, and Reilly Steel.

As I reflect today on our current war-torn world and those who have lost their lives in military service for our country in and outside conflict zones, I also am preparing for time next week embedded in an educational mission with current and emerging U.S. and foreign military leaders. I am privileged to be a participant in the 2026 National Security Seminar at the Army War College teaching and training facility in Carlisle, Pennsylvania. I was nominated for service in this program by a friend who is a retired valuation expert that guest lectures in my Corporate Finance course. He is on the Board of Trustees of the Army War College Foundation. We have had many conversations over the years about military service and strategy.

As the National Security Seminar website notes:, the National Security Seminar seeks:

⋅ To enhance student learning through exposure to a cross-section of American society and perspectives.

⋅ To reach out to civilian leaders in communities across America and provide an opportunity for them to become better acquainted with the U.S. Army War College and prospective future leaders of our Armed Forces.

⋅ To synthesize the Army War College academic year of study through examination of current national security issues.

⋅ To create an environment for our students and NSS guests to candidly evaluate current policies and strategies.

More information on the National Security Seminar is available here.

I can only hope that I am able to contribute something valuable to the students at the Army War College while I am there for a few days. Maybe my A.B. degrees in International Relations and History (focused on American political history in the 20th century), as well as my legal expertise (including in asylum and refugee work with immigrants), will help inform my commentary . . . . We shall see.

My father and father-in-law (both now deceased) were U.S. Army veterans. This may be but a small way for me to give back and honor the service and lives of both of them and so many others, but it is meaningful to me. I will hold all of this in my heart as I observe Memorial Day today in Las Vegas, where many of us are converging for the next few days for the National Business Law Scholars Conference. I hope to see some of you all there.

Well, it’s here, the SpaceX S-1.

I still haven’t gone through the whole thing, so I’m jumping specifically to the provisions limiting shareholder litigation rights. 

As we all know, Texas does plenty of that all on its own, by immunizing officers and directors against any liability absent a showing of “fraud, intentional misconduct, an ultra vires act, or a knowing violation of law,” and by allowing (as SpaceX will opt into) its corporations to bar derivative claims unless the plaintiff holds at least 3% of the outstanding stock.

Naturally, SpaceX proposes to go further, with various forum selection and arbitration clauses.

First, interestingly, SpaceX has chosen to put these in the bylaws, and not in the charter.  Why is this interesting?  As we all know, bylaws can be amended unilaterally by directors; charter amendments require a shareholder vote.  Back when the Delaware Supreme Court first authorized forum selection clauses governing federal securities claims in Salzberg v. Sciabacucchi, it did a very curious thing: first, it held these clauses would be treated as contractually binding in part because charters require a shareholder vote, and second, it held – with no further explanation – that bylaws are contractually binding as well.

I, of course, have long argued charters aren’t contracts, bylaws certainly aren’t contracts, and none of this can cover federal securities claims, etc etc, but after Salzberg, courts in other jurisdictions began to enforce forum selection provisions for federal securities claims, both in bylaws and charters, as contractually binding without much further thought (which I have angsted over repeatedly both in this blog, and in a paper).  My sense was always, courts – especially generalist courts with no corporate expertise – really didn’t want to be bothered with the issue, especially when forum selection, directing federal securities cases to federal court, didn’t seem particularly unreasonable.  Except that precedent exists now, that bylaws are contracts, as are charters, and that’s the precedent SpaceX will rest upon when it argues its arbitration bylaws are contracts.  We’ll see if courts apply any more scrutiny to the issue now, if they distinguish between bylaws and charters, or if perhaps they figure that so long as the company went public with the bylaws in place, there’s no need to draw a distinction and they can worry about that onion slicing when an arbitration bylaw is unilaterally adopted by a corporate board midstream.

Moving on, and here’s where it gets long because I need to block quote a buncha stuff, so under the cut it goes.

Continue Reading “Unsettled”

Institutional investors today have to think more about differences between jurisdictions to decide whether to vote in favor of proposals to move from one jurisdiction to another. The Council of Institutional Investors has been working to get up to speed on these issues and recently posted a chart and featured it on the Harvard Law School Forum on Corporate Governance. I gave some comments on an early version of the chart and know that they’re working in good faith to help investors understand the differences. I’m also a big fan of their podcast, the Voice of Corporate Governance which often has thoughtful takes and engagement.

The chart notes that although they “exercised due care in preparing this report, it does not guarantee the accuracy of the information.” It also asks readers to report errors or suggest additional features for comparison by emailing them. These charts will always be works in progress, continually updated as jurisdictions change over time.

Now that I’ve seen the final version, I’ve got some notes on it. Some of this draws from notes I sent earlier in the process and some of it is what I think people need to know now after looking at this version. And a few things are just recent updates.

Director and Officer Liability

The chart highlights differences but uses the phrase “provable in court” when describing director and officer liability for the Cayman Islands, Nevada, and Texas, but not for Delaware. Some think Delaware has an excessive liability environment now, but you still have to prove claims in court there too.

Nevada’s statutory business judgment rule has three real components. It creates a default presumption that directors and officers “are presumed to act in good faith, on an informed basis and with a view to the interests of the corporation.” Establishing liability requires rebutting that presumption and showing two more things: “(1) The director’s or officer’s act or failure to act constituted a breach of his or her fiduciary duties as a director or officer; and (2) Such breach involved intentional misconduct, fraud or a knowing violation of law.”

Readers should also understand that there is nuance around default provisions in Nevada too. The chart explains that a 102(b)(7) provision can limit liability in Delaware. It does not explain that Nevada also allows corporations to alter the liability default by setting different conditions in their charter. It might also note that Delaware also now allows exculpation for officers.

Nevada and Delaware have different director and officer liability defaults. Both allow corporations to make changes to the default through the articles of incorporation. Most public companies move away form Delaware’s default and adopt a 102(b)(7) provision. Most Nevada firms stay with Nevada’s default, but I have seen a Nevada firm shift away from our default while I can’t recall a public Delaware company that didn’t reject its default.

Duty of Board of Directors

Here, the chart notes that Delaware requires its firms to “[m]aximize long-term shareholder value” and describes Nevada as allowing boards to consider a range of other stakeholder interests. This is correct in that Nevada does have a constituency statute, like a significant number of other states.

Yet what Delaware’s law actually means on this front in terms of obligations that meaningfully restrain a board remains a debate topic. The view that this is Delaware’s settled policy isn’t universally held. As it’s embedded in case law instead of a statute, exactly what it means may be hard to define.

Functionally, the flexibility available to boards of directors in Delaware remains significant–even if the link to maximizing long-term shareholder value seems dubious at best. Consider an old example. Occidental Petroleum famously donated millions to an art museum and settled the case for some naming rights. This was a business decision entrusted to the judgment of the board, but I continue to doubt that drivers with gas vehicles meaningfully discriminate between gas stations with or without Occidental Petroleum gasoline because Occidental Petroleum donated money to an art museum in Los Angeles.

Books and Records and Inspection Rights

The chart is correct that Nevada does not do Delaware-style 220 actions. But as I’ve explained elsewhere, Nevada courts have allowed access to Non-Objecting Beneficial Owner (NOBO) lists in situations similar to Delaware.

It may also be worth noting that a retail stockholder with a small holding percentage wouldn’t be entitled to books and records even if the company fell behind on annual reporting. The default remains that the action needs support “authorized in writing by the holders of at least 15 percent of all its issued and outstanding shares” or by a 15% holder acting alone.

Nonbinding Shareholder Proposals and Annual Meetings

The chart states that “[w]ith written consent of shareholders with a majority of the voting power, a company could opt not to hold annual shareholder meetings.” It cites to NRS 78.310 for this. I don’t think that’s quite right. When I commented on an early version, I took the view that Nevada assumes that corporations will hold annual meetings and suggested looking at NRS 78.330. That provision provides that “unless the articles of incorporation or the bylaws require more than a plurality of the votes cast, directors of every corporation must be elected at the annual meeting of the stockholders by a plurality of the votes cast at the election.”

Nevada’s statute doesn’t affirmatively say that an annual meeting must be held, but it’s clear that if a corporation does not elect directors within 18 months, NRS 78.345 allows stockholders with 15% of voting power to have a court order that an election be held.

It might be theoretically possible under NRS 78.320 for stockholders to elect directors by written consent, but this seems very unlikely for public companies. Listed companies agree to comply with rules, including requirements to hold annual meetings. The possibility that no annual meeting might be held for any significant public companies seems speculative at best.

Court Consideration of Conflicted Directors

Here the phrase “conflicted directors” can be read in different ways. Is it how to identify conflicted directors or is it for transactions with directors with an interest? For interested directors, the statutory provision is NRS 78.140, not NRS 78.240.

But, NRS 78.240 contains how you identify disinterested directors for a transaction. Now, this is a very minor quibble. Delaware’s standards are described as “[n]ew safe harbor provisions,” but Nevada’s provisions which were passed after Delaware’s are not described as new. Nevada’s newer provision followed Delaware’s. Delaware deferred to stock exchange standards on independence criteria, and then Nevada did something similar.

Specialized Courts

The chart describes the current status of the constitutional amendment to authorize a dedicated, appointed business court. Although it cites to an article discussing the creation of the Nevada Supreme Court Commission to Study the Adjudication of Business Law Cases, it doesn’t discuss the Commission or its work.

And there is relevant news here. Although I don’t have anything to link to on this yet, I understand that it was announced at a recent bench bar meeting that the Commission is launching a pilot program that will dedicate certain judges exclusively to handle business court cases in Clark County. Existing cases are expected to be reassigned by the end of June and the pilot program should go into effect at the beginning of the third quarter this year.

Nevada Statute Up To Date!

The chart also notes that Nevada’s statute hasn’t been updated online–but that’s also changed in the last month. It’s now up to date! You can see when Nevada last updated its online statute if you drag your cursor over the upper left hand corner. The last revision dates appear when highlighted.