Delaware Corporate Law 2018 Year in Review
For corporate law practitioners, 2018 saw significant change in the Delaware practice, as well as important developments in the case law. Perhaps most noteworthy, the Court of Chancery added two new judges: Vice Chancellors Morgan T. Zurn and Kathaleen S. McCormick. Vice Chancellors Zurn and McCormick are, respectively, the third and fourth women to serve on the Court of Chancery since its establishment in 1792. They are a welcome addition to an already stellar bench.
The addition of the two new Vice Chancellors will enable the Court to continue its tradition of exemplary service, albeit with a slightly different breed of cases than seen in recent years. In 2018, 959 civil cases, comprised primarily of corporate and commercial matters, were filed in the Court of Chancery. Not surprisingly, the number of appraisal cases declined dramatically. Only 26 appraisal cases were filed, no doubt as a result of the 2017 decisions establishing the primacy of the deal price as an indicator of fair value. Similarly, deal litigation has declined; in the wake of the Trulia and Corwin decisions, would-be stockholder plaintiffs no longer indiscriminately challenge every deal and its attendant disclosures, instead focusing on deals involving alleged controlling stockholder conflicts. And, as deal cases are down, books and records cases are up, as stockholders seek to first probe deals potentially subject to challenge. In 2018, 89 books and records cases were filed in the Court of Chancery, as compared to 75 in 2017 and 76 in 2016.