With the discussion over reincorporating companies continuing, the other place to watch to observe jurisdictional trends is the IPO market. I recently covered Delaware’s recent report that it pulled in “nearly 70%” of IPOs last year. But what does 2026 look like so far?

Answering that question requires gathering a lot of information. But we now have some spreadsheets thanks to some student help. I’m enormously grateful to two student research assistants, Boyd Law student Rocco Marino and UNLV Honors College undergraduate student Micaela Benavidez-Sosa, for all the work they did to pull together this information. This remains a work in progress and we’re continuing to refine the spreadsheets. If you see ways to make them more useful, please email me and I’ll take a look.

We aimed to gather information about all of the IPOs or direct listings occurring in the first half of 2026. A full copy of our spreadsheet is available here. I used Claude to create the infographics. Any errors in this analysis are mine alone.

Return of the SPAC

First, some insights. SPACS are back! This has been reported elsewhere, but many of the IPOs we tracked were SPACs. Overwhelmingly, these went to the Caymans. To understand trends, I’m breaking our infographics down into with and without SPACs because operating company IPOs are different and probably a better signal as to what’s happening.

SPAC IPOs vs Operating Co. IPOs.

On the SPAC front, almost all of the SPAC IPOs were in the Caymans. One went to Delaware.

All IPOs By Jurisdiction & Capital Raised

When you exclude SPACs from the mix, it shows a different percentage.

The Caymans just vanish off the chart. It’s nearly all SPACs there.

SpaceX Is Big.

SpaceX is just such a huge IPO that I thought it would be interesting to see how the market looked with SpaceX against everything else.

Focus by Jurisdiction

When you look at the overall jurisdictional breakdown in terms of how many companies particular jurisdictions, Delaware picks up just 28% of the market when SPACs are included.

Once you exclude SPACs, the picture looks similar to the total reported for last year by the Delaware Secretary of State’s office. Delaware is coming in at 64%. Nevada and Texas are in the mix.

The Law Firms

Because I have a big spreadsheet and AI to generate infographics easily, let’s look at capital raised by issuers’ counsel and capital raised by underwriters’ counsel. When I first did this, I ran into a SpaceX problem. Basically SpaceX raised so much money that all the other bars are too tightly compressed to show anything. You can see it for yourself. It’s Gibson Dunn’s 2 deals raising 5 times as much capital as Latham’s 13. The SpaceX magnitude just washes out the rest of the bars.

For the next few, I’m just excluding SpaceX.

In a few instances, we have multiple firms as issuer counsel. A good example is Brownstein Hyatt with a big Las Vegas office alongside Simpson Thatcher for Pershing Square’s $5 Billion IPO. That $5 Billion is counted for both of them in my chart.

Davis Polk was underwriter’s counsel on SpaceX and still takes the top slot on the underwriter chart even excluding it.

Overall Law Firm Rankings

To capture overall activity, this is the top 10 IPO or Direct listing participation for the first half of 2026 as either underwriters’ or issuer’s counsel.

Operating Company IPO Participation – Issuer & Underwriter Representation

With 88 operating company IPOs, it’s remarkable that Latham was probably involved in about a third of them. Latham and Davis Polk combine for about 60%. Of course, there are probably also deals where they were both involved.

Operating Company IPO Issuer Counsel

Operating Company IPO Underwriter Counsel

SPAC IPO Participation – Issuer & Underwriter Counsel Roles

It’s a similar situation on the SPAC side with Loeb & Loeb and Ellenoff Grossman combining for significant presence.

SPAC Issuer Counsel

SPAC Underwriter Counsel

What I take away from these is that there are distinct leaders in operating company IPOs and SPAC IPOs. On the operating company IPO side, Latham and Davis Polk pull away from the pack, doing significantly more deals. On the SPAC side, it’s Loeb & Loeb and Ellenoff Grossman.

Direct Listings

There have also been a significant number of direct listings. I’ll admit that this one surprised me because I expected it to come out the same as IPOs. But Nevada takes this one on a slim margin on deal count.

I ran it again by market cap and Delaware’s 4 deals are more than Nevada’s 5 on that front. Nevada drops to third with Australia taking second.

Delaware’s dominance by market cap here is really AstraZeneca driving the magnitude. If you exclude it as we did with SpaceX as a big outlier, the rankings shift and you can actually see the bars again.

On the direct listing front, let’s not forget the law firms doing the work. It’s a fairly diverse group with Winston & Strawn in the lead.

Underwriter Differences

It’s also interesting to look at what’s happening by different underwriters. There are really two different markets with different underwriters. The operating company ecosystem has one set of banks and tends to go to Delaware. The SPACs uses different banks and goes to the Caymans. Here are the top 15 by IPO deal count.

If you look at it by capital raised–excluding SpaceX.

When you put SpaceX in again, its magnitude again flattens everything else out.

Controlled Companies

Different jurisdictions classify companies as “controlled’ under different tests. This looks at companies that identify as controlled companies.

Delaware has the most here in terms of raw numbers. It’s also true that for other jurisdictions, most of what they have picked up comes from controlled companies.

The following chart shows non-controlled companies by state of incorporation.

Delaware’s IPO share is down a bit from past years where it used to be over 80% regularly, but,it’s close to the rough range for non-controlled companies.

What I take away from this is that controlled companies are now the ones most likely to pick states other than Delaware. What this market development means is a different question. There are different narratives depending on your perspective. Controlled companies may be more likely to pick alternative jurisdictions because of concerns about Delaware’s litigation environment and a desire to maintain operational flexibility. If you think that Delaware’s litigation environment strikes the right balance now, maybe you read this as controlled companies looking to escape accountability.

Ultimately this is a work in progress and we’ll be spending more time with the spreadsheets to make sure we’ve got it all right and doing more updates. If you think of other things to look at please send an email. I’ll put them in the next update if I can.

We just got our first decision about directors’ duties in the sale context of a public benefit corporation (PBC); I’m not even aware of any other cases about directors’ PBC duties at all, though I wouldn’t swear there aren’t any.

Honestly at the end of the day it largely comes down to, absent allegations of self-interest, no claims are going to succeed, but let’s unpack the decision anyway, because it raises interesting questions for other contexts.

MPower Financing is a privately-held PBC that issues student loans.  Two of its own major lenders held 25% of the company’s stock, and one had rights to designate two board members.

The company was in urgent need of financing, and the lenders proposed to provide it, in exchange for the ability to convert the existing loans into stock, which would result in the lenders owning 85% of the company at a significant discount to the prior round of financing (four years earlier).  The other stockholders urged the company to seek a shareholder vote to approve the transaction, and also offered an alternative proposal; the CEO and at least one director agreed the transaction should be subject to stockholder approval.  But the board refused, and a special committee – whose disinterestedness was unchallenged, counseled by a financial advisor – approved the deal. 

The now-minority stockholders brought a lawsuit alleging that this was, essentially, a Revlon transaction – the board had sold control – and that the board had breached its fiduciary duties in so doing.  The board did not dispute that this was Revlon and, by the way, I note that, though there was a dispute among the parties as to whether these were direct or derivative claims, VC Cook analyzed them on the merits without weighing in – so this is an ongoing issue Delaware will have to address eventually.

Originally, the plaintiffs had sought injunctive relief, but after expedition was denied (I assume the deal went through) they apparently were seeking damages.

I should also note that, leaving aside the whole Revlon-PBCness of the dispute, defendants also argued that they were free of liability under DGCL 144(a)(1), which deals with cleansing of conflict transactions.  VC Cook, almost as an aside, held that he would have dismissed the claims on these alternative grounds, but also – in footnote 110 – suggested that there was no conflict of interest here, because plaintiffs had not alleged facts to suggest that the lender designees on the board were non-independent.  Which raises an interesting question: Does 144(a)(1) cleansing apply outside the context of conflicted transactions?  On this, I note that VC David recently dismissed a challenge to a merger, not on DGCL 144(a) grounds, but on Corwin grounds, presumably because no conflict was alleged.

So, you know – awkward.

So, the first issue for VC Cook was whether Revlon is a standard of review or a standard of conduct.  As a standard of conduct – that boards must maximize the immediate value of the equity – plaintiffs’ claims would fail right out of the gate, because the board’s fiduciary duty in a PBC is to balance the equity interests against the public interests.  VC Cook did not weigh in on the review vs. conduct question (VC Laster has argued, and I agree, it’s review), because he concluded that plaintiffs’ claims failed even if you treated Revlon as a standard of review, and that’s where he devoted the bulk of his analysis.

So, if Revlon is a standard of review, that means you conduct enhanced scrutiny of a decision to sell the company, i.e., a range of reasonableness analysis.  But whatever that means in the PBC context, there’s another wrinkle: In the context of a PBC specifically, there is a statutory safe harbor under DGCL 365(b) which provides:

A director of a public benefit corporation shall not, by virtue of the public benefit provisions or § 362(a) of this title, have any duty to any person on account of any interest of such person in the public benefit or public benefits identified in the certificate of incorporation or on account of any interest materially affected by the corporation’s conduct and, with respect to a decision implicating the balance requirement in subsection (a) of this section, will be deemed to satisfy such director’s fiduciary duties to stockholders and the corporation if such director’s decision is both informed and disinterested and not such that no person of ordinary, sound judgment would approve.

So, the question was whether the defendants satisfied the preconditions to this safe harbor with an “informed and disinterested” decision that was “not such that no person of ordinary, sound judgment would approve.”

The “not such” bit reads like a saving for waste claims; VC Cook held there was no waste pled here, which meant, defendants were entitled to the safe harbor if their decision was “informed and disinterested.” Since the plaintiffs did not dispute the disinterestedness of the committee, the relevant question was whether the defendants were “informed.”  So that meant, what does “informed” mean in this context?

Here’s where things got interesting.  VC Cook noted that in the context of 144 cleansing, there’s a very specific meaning given to informed.  That meaning, however, was not included in DGCL 365, and so the common law would control.

A couple of things about this.  First, though the situations are not directly comparable, I note that recently VC Will did import DGCL 144’s definitions into a separate question (demand excusal under 23.1).  VC Cook did not. 

Second, I have previously pointed out that DGCL 144’s definition of informed for the purposes of a stockholder vote may differ from the common law.

The big issue being, how much do 144 standards migrate to other parts of Delaware law? VC Will held they do, at least in some circumstances; VC Cook held they do not, in the PBC context, and what on earth are we supposed to do with stockholder cleansing under Corwin, which – as I noted above – may or may not evade DGCL 144 when conflicts are not alleged?  (This is not totally hypothetical; in addition to VC David’s decision above, see Chancellor McCormick’s Activision decision, which wasn’t decided under the new DGCL 144 but I don’t think that would have made a difference.).  Or, stockholder cleansing under MFW, which may still be a thing? Do we have different standards for all these different scenarios, or does the Delaware Supreme Court clean everything up with unified standards?  Thanks so much for the certainty, SB 21 drafters!

Anyhoo, VC Cook had to decide what “informed” meant, such that defendants would be entitled to the PBC safe harbor.  And that required a decision as to whether the definition of “informed” should shift depending on whether this was a Revlon transaction. 

And!  He did not weigh in, because he concluded that, either way, plaintiffs had not shown the decision was uninformed.  Under business judgment review, I mean, c’mon.

Under enhanced scrutiny review, since PBC directors are required to balance the interests of stockholders against the interests of the public and the specific interest for which the corporation is formed, VC Cook held that plaintiffs would have to show the directors failed to consider all three interests.  Op. at 21.  But, at best, plaintiffs had only alleged deficiencies with respect to stockholder interests; as the court put it, “this goes only to the stockholders’ pecuniary interests, which is just one of the three interests identified in Section 365(a).  Plaintiffs do not allege that the Special Committee failed to take steps to inform itself of the other interests it was required to balance.” 

So, not good enough, plaintiffs had not shown the directors’ decision was uninformed, therefore, directors were entitled to the safe harbor of DGCL 365(b).

Without commenting on the specifics of this particular complaint, I think that’s a weird holding.  I.e., if directors are required to balance all three interests, it should be sufficient to allege that they failed to inform themselves as to one.  Here, however, VC Cook suggested that plaintiffs must allege a deficiency as to all three before a decision would be deemed “uninformed” for the purposes of DGCL 365(b).

Not that it matters when damages are sought because DGCL 365(c) states that, absent a conflict, failure to conduct a balancing of relevant interests is neither disloyal nor bad faith. But apparently, no one argued for the applicability of DGCL 365(c) in this case, so it wasn’t part of the court’s analysis.  See Op. at fn. 110.

All of which means, under the most stockholder-plaintiff friendly understanding, absent an uncleansed conflict, and absent a showing of waste, if one is not seeking damages – only injunctive relief (so 102(b)(7) doesn’t apply) – the plaintiff in a PBC case would have to show deficiencies as to consideration of all three interests, apparently, before any kind of breach could be shown entitling the plaintiff to relief.

I don’t expect this to come up a lot in the future, though, so really, the interesting bits are those about how all of these different standards interact with the new DGCL 144/SB 21, and the answer is – so far – ¯\_(ツ)_/¯

And another thing. No new Shareholder Primacy podcast this week as we are on a limited summer schedule, but if you’re that desperate to hear me and Mike Levin, we were recently guests on CII’s Voice of Corporate Governance podcast, available here.

After the news broke about Trump Media’s plan to sell access to its data feed, the company offered a line of defense that the feed, though allowing subscribers to trade faster, does not in fact give information to subscribers sooner than it reaches the public:

The White House referred comments to Trump Media. A spokesperson for the company said, “Truth API is designed to deliver posts the instant they are made public to everyone, not before.” 

With the caveat that I’m hardly a techie, the theory seems to be subscribers will be able to get their trades in faster because they are plugged directly into the system, even as the post is nominally made available to everyone, and that makes it okay. But let’s take a look at the classic SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (2d Cir. 1968):

The effective protection of the public from insider exploitation of advance notice of material information requires that the time that an insider places an order, rather than the time of its ultimate execution, be determinative for Rule 10b-5 purposes. Otherwise, insiders would be able to “beat the news,” by requesting in advance that their orders be executed immediately after the dissemination of a major news release but before outsiders could act on the release…. Before insiders may act upon material information, such information must have been effectively disclosed in a manner sufficient to insure its availability to the investing public. …

Coates was absolved by the court below because his telephone order was placed shortly before 10:20 A.M. on April 16, which was after the announcement had been made even though the news could not be considered already a matter of public information. The reading of a news release, which prompted Coates into action, is merely the first step in the process of dissemination required for compliance with the regulatory objective of providing all investors with an equal opportunity to make informed investment judgments. Assuming that the contents of the official release could instantaneously be acted upon,  at the minimum Coates should have waited until the news could reasonably have been expected to appear over the media of widest circulation, the Dow Jones broad tape, rather than hastening to insure an advantage to himself and his broker son-in-law.

And here’s the SEC, in In the Matter of Certain Trading In the Common Stock of FABERGE, INC., 1973 WL 150154:

In order to effect a meaningful public disclosure of corporate information, it must be disseminated in a manner calculated to reach the securities market place in general through recognized channels of distribution, and public investors must be afforded a reasonable waiting period to react to the information. Obviously, what constitutes a reasonable waiting period must be dictated by such surrounding circumstances as the form of dissemination and the complexity of the information, i.e., whether it is “readily translatable into investment action” [footnote omitted] … Proper and adequate disclosure of significant corporate developments can only be effected by a public release through the appropriate public media, designed to achieve a broad dissemination to the investing public generally and without favoring any special person or group. To hold otherwise would be to sanction competition for tips in which the ordinary individual investor would inevitably be at a serious disadvantage.

Or more simply:

For purposes of insider trading law, insiders must wait a ‘‘reasonable’’ time after disclosure before trading.

What constitutes a “reasonable” time will vary but since TMTG is literally selling the feed as a way for traders to move before anyone else, I’m pretty sure that’s not it. Do with that what you will.

And another thing. Mike Levin and I talk about the whole mishegoss in more depth on the Shareholder Primacy podcast, and we also discuss new disclosure requirements for (some) activists. Here at Apple; here at Spotify; here at Youtube.