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William Bratton Revisits Team Production but I Remain Wholly Unpersuaded

Bratton, William Wilson, Team Production Revisited (September 29, 2021). U of Penn, Inst for Law & Econ Research Paper No. 21-27, University of Miami Legal Studies Research Paper No. 3935788, Vanderbilt Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3935788

This Article reconsiders Margaret Blair and Lynn Stout’s team production model of corporate law, offering a favorable evaluation. The model explains both the legal corporate entity and corporate governance institutions in microeconomic terms as the means to the end of encouraging investment, situating corporations within markets and subject to market constraints but simultaneously insisting that productive success requires that corporations remain independent of markets. The model also integrates the inherited framework of corporate law into an economically derived model of production, constructing a microeconomic description of large enterprises firmly rooted in corporate doctrine but neither focused on nor limited by a description of principal-agent relationships among shareholders and managers. This Article shows that the model retains descriptive robustness, despite the substantial accretion of shareholder power during the two decades since its appearance. The Article also shows that the model taught three groundbreaking lessons to corporate legal theory. First, nothing binds microeconomic analysis together with a theory of the firm rooted in shareholder primacy. Second, microeconomics, with its emphases on efficiency and maximization, can be deployed in the service of an allocatively sensitive description of corporate governance, providing a more capacious methodological tent than anyone in corporate law understood prior to Blair and Stout’s intervention. Third, it is not only possible but arguably necessary to take corporate law seriously when articulating a microeconomic theory of corporate production. To the extent an economic model’s description of the appropriate legal framework differs materially from the inherited legal framework, there is a possible, even a probable, infirmity in the model.

I remain unpersuaded. I have never bought team production as either a descriptive or normative model of corporate governance. To the contrary, I think my director primacy model is superior both descriptively and normatively.

What follows is excerpted from my article Director primacy: The means and ends of corporate governance. 97 Northwestern University Law Review, 547-606 (2003). One of these days I'll get around to updating it for subsequent developments.

Blair and Stout contend that corporate law treats directors not as hierarchs charged with serving shareholder interests, but as referees—mediating hierarchs, to use their term—charged with serving the interests of the legal entity known as the corporation.[1]

The Firm as Team

Team production is an important and highly useful concept in neoinstitutional economics. Blair and Stout stretch the team production model to encompass the entire firm. Doing so is unconventional. In my view, stretching team production that far also detracts from the model’s utility.

Production teams are defined conventionally as “a collection of individuals who are interdependent in their tasks, who share responsibility for outcomes, [and] who see themselves and who are seen by others as an intact social entity embedded in one or more larger social systems ....”[2] This definition contemplates that production teams are embedded within a larger entity. As one commentator defines them, teams are “intact social systems that perform one or more tasks within an organizational context.”[3]

Building on the work of Rajan and Zingales, Blair and Stout define team production by reference to firm specific investments.[4] Hence, for example, they describe the firm “as a ‘nexus of firm-specific investments.’” In fact, however, firm specific investments are not the defining characteristic of team production. Instead, the common feature of team production is task nonseparability.

Oliver Williamson identifies two forms production teams take: primitive and relational. In both, team members perform nonseparable tasks. The two forms are distinguished by the degree of firm specific human capital possessed by such members. In primitive teams, workers have little such capital; in relational teams, they have substantial amounts. Because both primitive and relational team production requires task nonseparability, it is that characteristic that defines team production.

Most public corporations have both relational and primitive teams embedded throughout their organizational hierarchy. Self-directed work teams, for example, have become a common feature of manufacturing shop floors and even some service workplaces. Even the board of directors can be regarded as a relational team. Hence, the modern public corporation arguably is better described as a hierarchy of teams rather than one of autonomous individuals. To call the entire firm a team, however, is neither accurate nor helpful.

As among shop floor workers organized into a self-directed work team, for example, team production is an appropriate model precisely because their collective output is not task separable. In a large firm, however, the vast majority of tasks performed by the firm’s various constituencies are task separable. The contribution of employees of one division versus those of a second division can be separated. The contributions of employees and creditors can be separated. The contributions of supervisory employees can be separated from those of shop floor employees. And so on. Accordingly, the concept of team production is simply inapt with respect to the large public corporations with which Blair and Stout are concerned. [5]

The Domain of the Mediating Hierarchy

John Coates argues that Blair and Stout’s mediating hierarch model fares poorly whenever there is a dominant shareholder. If so, the model’s utility is vitiated with respect to close corporations, wholly-owned subsidiaries, and publicly held corporations with a controlling shareholder. In addition, Coates argues, Blair and Stout’s model also fares poorly whenever any corporate constituent dominates the firm. Many of publicly held corporations lacking a controlling shareholder are dominated one of the constituents among which the board supposedly mediates—namely, top management. Although the precise figures disputed, a substantial minority of publicly held corporations have boards in which insiders comprise a majority of the members. Even where a majority of the board is nominally independent, the board may be captured by insiders.

I more skeptical than Coates of board capture theories, having argued elsewhere that independent board members have substantial incentives to buck management. On balance, however, Coates makes a persuasive case that the mediating hierarch model has a relatively small domain. In contrast, the domain of director primacy, which merely requires the absence of a controlling shareholder, seems considerably larger.

The Foundational Hypothetical

Blair and Stout develop the mediating hierarchy model by telling the story of a start-up venture in which a number of individuals come together to undertake a team production project. The participating constituents know that incorporation, especially the selection of independent board members, will reduce their control over the firm and, consequently, expose their interests to shirking or self-dealing by other participants. They go forward, Blair and Stout suggest, because the participants know the board of directors will function as a mediating hierarch resolving horizontal disputes among team members about the allocation of the return on their production.

On its face, Blair and Stout’s scenario is not about established public corporations. Instead, their scenario seems heavily influenced by the high-tech start-ups of the late 1990s. Yet, even in that setting, the model seems inapt. In the typical pattern, the entrepreneurial founders hire the first factors of production.[6] If the firm subsequently goes public,[7] the founding entrepreneurs commonly are replaced by a more or less independent board.[8] The board thus displaces the original promoters as the central party with whom all other corporate constituencies contract. It is due to my empirical impression that this is the typical pattern that director primacy assumes the board of directors—whether comprised of the founding entrepreneurs or subsequently appointed outsiders—hires factors of production, not the other way around.[9]

Lest the foregoing seem like an argument for shareholder primacy, I think it is instructive to note the corporation—unlike partnerships, for example—did not evolve from enterprises in which the owners of the residual claim managed the business. Instead, as a legal construct, the modern corporation evolved out of such antecedent forms as municipal and ecclesiastical corporations.[10] The board of directors as an institution thus pre-dates the rise of shareholder capitalism.[11] When the earliest industrial corporations began, moreover, they typically were large enterprises requiring centralized management. Hence, separation of ownership and control was not a late development but rather a key institutional characteristic of the corporate form from its inception.[12] At the risk of descending into chicken-and-egg pedantry, the historical record thus suggests that director primacy emerged long before shareholder primacy. Directors have always hired factors of production, not vice-versa.

The Board’s Role

In Blair and Stout’s model, directors are hired by all constituencies and charged with balancing the competing interests of all team members “in a fashion that keeps everyone happy enough that the productive coalitions stays together.” In other words, the principal function of the mediating board is resolving disputes among other corporate constituents. This account of the board’s role differs significantly from the standard account.

The literature typically identifies three functions performed by boards of public corporations:[13] First, and foremost, the board monitors and disciplines top management. Second, while boards rarely are involved in day-to-day operational decision making, most boards have at least some managerial functions. Broad policymaking is commonly a board prerogative, for example. Even more commonly, however, individual board members provide advice and guidance to top managers with respect to operational and/or policy decisions. Finally, the board provides access to a network of contacts that may be useful in gathering resources and/or obtaining business. Outside directors affiliated with financial institutions, for example, apparently facilitate the firm’s access to capital. In none of these capacities, however, does the board of directors directly referee between corporate constituencies.

To be sure, institutional economics acknowledges that dispute resolution is an important function of any governance system. Ex post gap-filling and error correction are necessitated by the incomplete contracts inherent in corporate governance. Those functions inevitably entail dispute resolution. As we’ve seen, the firm addresses the problem of incomplete contracting by creating a central decisionmaker authorized to rewrite by fiat the implicit—and, in some cases, even the explicit—contracts of which the corporation is a nexus.

As the principal governance mechanism within the public corporation, the board of directors is that central decisionmaker and, accordingly, bears principal dispute resolution responsibility. Yet, in doing so, the board “is an instrument of the residual claimants.” Hence, if the board considers the interests of nonshareholder constituencies when making decisions, it does so only because shareholder wealth will be maximized in the long run.

Blair and Stout posit that the legal mechanisms purporting to ensure director accountability to shareholder interests—such as derivative litigation and voting rights—benefit all corporate constituents. Conceding that shareholder and nonshareholder interests are often congruent, it nevertheless remains the case that some situations present zero-sum games. Further conceding the weakness of those accountability mechanisms, shareholder standing to pursue litigation and/or the exercise of shareholder voting rights nevertheless give shareholders rights that potentially can be used to the disadvantage of other constituencies.

If directors suddenly began behaving as mediating hierarchs, rather than shareholder wealth maximizers, an adaptive response would be called forth.[14] Shareholders would adjust their relationships with the firm, demanding a higher return to compensate them for the increase in risk to the value of their residual claim resulting from director freedom to make trade-offs between shareholder wealth and nonshareholder constituency interests. Ironically, this adaptation would raise the cost of capital and thus injure the interests of all corporate constituents whose claims vary in value with the fortunes of the firm.

My third video on business valuation is now up on YouTube

This one focuses on the Capital Asset Pricing Model (CAPM), Beta, and using them to calculate discount rates.

Bavette Steak with Sherry, Mustard, and Green Peppercorn Sauce and Ridge Three Valleys 2019

Helen and I get two meals a week from each of Home Chef and Hello Fresh. Usually we eat them Monday through Thursday and cook from scratch on Friday and Saturday. This week, however, we delayed one of our Hello Fresh meals to Friday night: Bavette Steak in Sherry Shallot Sauce with Crème Fraîche Mashed Potatoes & Roasted Green Beans. It's a pretty good menu kit, but I've made some substantial tweaks that I think significantly improve it.

Start with the Bavette steak. Bavette is a fancy name for a cut taken from the bottom sirloin butt. It comes from a part of the cow near the flank steak, which it resembles. Hello Fresh recommends sautéing the steaks for 5-7 minutes per side. I find the result very unsatisfactory. It's not very tender and easily gets past medium-rare.

Here's what I do instead:

• I give the steaks a quick bash all over with my Jaccard 48-Blade Meat Tenderizer. 
• I then dry marinade the steaks by rubbing them all over with a mix of 2 parts kosher salt, 1 part black pepper, 1 part onion powder, 1 part garlic powder, and 1 part Creole seasoning.
• I then vacuum seal each steak in its own 1 quart plastic bag using my Weston Vacuum Sealer. 
• The bags go into a large 12 quart spaghetti cooker filled about ⅔ full of hot water along with my Breville Joule Sous Vide. I set the sous vide's temperature to 133° and the timer to 100 minutes.
• I preheat a Le Creuset Square Skillet Grill Pan to 375° (as measured by my infrared thermometer).
• After removing the steaks from their bags and patting them very dry with paper towels, I sear them for about 90 seconds on each side. I let them rest and then slice them thinly against the grain.

Hello Fresh gives you two packets of crème fraîche for the mashed potatoes and 1 of sour cream for the sauce. I use one the packet of the crème fraîche for the sauce and put the sour cream and the other packet of crème fraîche in the potatoes.

As for the sauce, I melt a pat of butter in a nonstick skillet. I add a half tablespoon of chopped shallot and cook, stirring, until softened, 1-2 minutes. I then add a teaspoon of minced garlic and cook for 30 more seconds. Next I add 2 teaspoons of the provided sherry vinegar and 1 teaspoon of dry sherry. I let that mix reduce by half. Then goes in the packet of beef stock concentrate, ¼ cup water, and a half tablespoon green peppercorns. Simmer the sauce for a couple of minutes, remove from heat, mix in the reserved packet of crème fraîche, 1 and a half teaspoons of Dijon mustard, and 1 tablespoon butter. Return to heat and simmer until it thickens slightly, stirring to combine. Season with salt and pepper.

I prepare the potatoes as directed, except for swapping in the packet of sour cream.

Instead of roasting the green beans, I microwaved them in their bag (cutting a small hole in the top first) for 3 and a half minutes.

I like my version a LOT better.

With it we drank a Ridge Vineyards Three Valleys (Sonoma County) 2019. It's a blend of 73% Zinfandel, 13% Petite Sirah, 10% Carignane, 3% Mataro, and 1% Alicante Bouschet. (I always wonder whether that 1% really matters.). It was delicious. Full of fruit and youthful vitality. Blackberry, raspberry, briars, and warm spices. A note of pepper on the finish. Not a vin de grade, but a great match for steaks or BBQ in the short term. Grade: A-

Getting to know yours truly

At the law school, now that we're easing back into being at work in person that colloquium committee thought it would be a good idea to have a series of talks in which several members of the faculty introduced themselves by describing how we got into law teaching and saying a few words about our teaching and scholarship.

I was very pleased to be asked to speak at yesterday's session. So there are my notes.

I went to college in 1976 as a pre-med. In the summers after my sophomore and junior years, however, I worked in a pathology lab. I quickly discovered I didn't like being around dead people. I didn't like being around sick people. And I found bodily fluids icky. This seemed incompatible with a career in medicine. But by then I was locked into a Chemistry major.

So in 1980, I enrolled in Chemistry grad school. After a series of laboratory accidents that were not entirely my fault, my research advisor suggested I bail out with an M.S. and seek a job that did not involve dangerous substances and extremely valuable equipment.

So in 1982, I enrolled at UVA Law.

My plan, as I explained to my somewhat dubious parents, was to pursue a career in patent law where I could put my science training to good use. But then I met Mike Dooley.

In the summer after my first year, I was Mike’s RA.

I thought Mike had the coolest job in the world. People actually paid him to sit around thinking great thoughts about those fascinating things called corporations.

Admittedly, it was an odd trigger for a transformative experience, but that’s exactly what I had that summer. By the time the fall semester rolled around, I wanted to be a corporate lawyer. More precisely, I wanted to be a corporate law academic.

After a few years in practice, I got hired at UIUC law (where Mike Dooley had started). In 1996, I joined the UCLAW faculty.

As a scholar, I’ve made two primary contributions to the literature. I was one of the first people who argued that insider trading is not really a securities law issue. But rather an issue about who owns information. I developed an approach to insider trading that was designed to protect corporate rights in information, which I still believe better explains some aspects of the law and makes more sense than our fraud-based system.

Then I developed a model of corporate governance that I called director primacy, to contrast it to the prevailing shareholder primacy model. The model built on work Mike had done, which in turn had built on work economist Kenneth Arrow had done. It’s probably what I’m best known for. The gist is that there is an inherent tradeoff in corporate law between deference to the board’s authority and the need to hold the board accountable. Because the power to review is the power to decide, authority and accountability are ultimately inconsistent. This tension drives and explains much if not most of corporate law.

One thing I learned early on was that you need to keep banging away on an idea. After my fourth article on insider trading, Mike Dooley told me that what the world did not need was another article on insider trading by yours truly. Since then I’ve written a book on insider trading, two book chapters, and three more articles. I like to think all make contributions, as do the dozen or so articles and three books I’ve written about aspects of director primacy, but as the saying goes, quantity has a quality of its own.

As for teaching, I think legal education pervasively sends law students the message that corporate lawyering is a less moral and socially desirable career path than so-called “public interest” lawyering.  The corporate world is viewed as essentially corrupting and alienating, while true self-actualization is possible only in a Legal Aid office.

In my teaching, I have chosen to unabashedly embrace a competing view. I tell my students about Nicholas Murray Butler, president of Columbia University and winner of the Nobel Peace Prize, who wrote in 1912 that: “The limited liability corporation is the greatest single discovery of modern times. Even steam and electricity are less important than the limited liability company.”

I tell them about journalists John Micklethwait and Adrian Wooldridge, whose magnificent history of the corporation contends that the corporation is “the basis of the prosperity of the West and the best hope for the future of the rest of the world.”

And so I put it to my students this way: You want to help make society a better place? You want to eliminate poverty? Become a corporate lawyer. Help businesses grow, so that they can create jobs and provide goods and services that make people’s lives better.

The goal isn’t just to make my students feel better about themselves. I firmly believe that too many of our students, when they get out in practice, may be more willing to act in ways that are ethically gray—to act as facilitators rather than gatekeepers—if they’ve been told repeatedly that they’ve already “sold out.”

Also, I don’t use the Socratic method but that’s a story for another day.

Revised Version of "Don’t Compound the Caremark Mistake by Extending it to ESG Oversight" Now Online

Bainbridge, Stephen Mark, Don’t Compound the Caremark Mistake by Extending it to ESG Oversight (October 11, 2021). Business Lawyer (September 2021), UCLA School of Law, Law-Econ Research Paper No. 21-10, Available at SSRN: https://ssrn.com/abstract=3899528

Since the foundational decision in In re Caremark Intern. Inc. Derivative Litig., 698 A.2d 959 (Del. Ch. 1996), Delaware corporate law has required boards of directors to establish reasonable legal compliance programs. Although Caremark has been applied almost exclusively with respect to law and accounting compliance, the original Caremark decision contemplated applying the oversight duty to the corporation’s “business performance.” Accordingly, there is no doctrinal reason that Caremark claims should not lie in cases in which the corporation suffered losses, not due to a failure to comply with applicable laws, but rather due to lax risk management.

The question thus arises as to whether Caremark should be extended to board failures to exercise oversight with respect to environmental, social, and governance (ESG) factors. Obviously, where existing legislation or regulations impose compliance obligations in ESG-related areas, such as human resources, the environment, or worker safety, Caremark already applies. As such, boards must “ensure that compliance and monitoring systems are in place” to oversee corporate compliance with those laws.

Many ESG issues are not yet the subject to legal requirements, however. The question addressed in this Article is whether the board’s Caremark obligations should be extended to encompass oversight of corporate performance with such issues. In other words, should the board face potential liability not just for failing to ensure that the company has adequate reporting and monitoring systems in place to insure compliance with ESG-related legal requirements, but also to monitor ESG risks in areas where corporate compliance would be voluntary or aspirational.

A little self-promotion

.@PrawfBainbridge's take (https://t.co/WJ9wmhUWCz) on Sen. @marcorubio's "Mind Your Own Business Act" is cited by @jonsskolnik in @Salon. https://t.co/nEa7Kclqi3

— UCLA School of Law (@UCLA_Law) October 4, 2021

Wachtell Lipton Discusses Delaware Supreme Court’s New Demand Futility Test

Regular readers will recall that I offered a long post on United Food & Commercial Workers Union v. Zuckerberg, which set out Delaware's new-is demand futility standard. One week later, Wachtell Lipton catches up with a short post on the case:

To excuse demand under the new test, a complaint must allege with particularity that at least half of the members of the current board (1) received a material personal benefit from the misconduct alleged in the complaint; (2) face a substantial likelihood of liability on any of the claims in the complaint; or (3) lack independence from someone who received a material personal benefit from the misconduct alleged in the complaint or who would face a substantial likelihood of liability for any of the claims in the complaint.  The Court took care to note, however, that because its new test was conceptually consistent with Aronson and Rales, earlier precedents properly applying those rulings remain good law.

The decision reaffirms that directors are presumed to exercise their business judgment in the best interests of the corporation—even when they are named as defendants.  The law will therefore supplant board authority over corporate litigation only if a stockholder makes a detailed showing that at least half of the directors face a substantial threat of actual liability.

 

California Board of Director Gender Quota Law Going to Trial

Keith Paul Bishop reports:

California Superior Court Judge Maureen Duffy-Lewis issued her ruling yesterday on the parties' respective motions for summary judgment in Crest v. Padilla (Cal. Super. Ct. Case No. 19STCV27561).  In this case, the plaintiffs are seeking a judgment declaring that any and all expenditures of taxpayer funds to enforce and carry out the provisions of California's female director quota law (SB 826) are illegal.   SB 826 is codified at Sections 301.3 and 2115.5 of the California Corporations Code.   The basis for the plaintiffs' claim is Art. I, Section 31 of the California Constitution which forbids the state from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

Judge Duffy-Lewis denied both motions on the grounds that there are triable issues of material facts.  While the fundamental question presented by the case appears to be legal, the ruling notes that each side provided with their moving papers "substantial amounts of extrinsic evidence" and that each side disputed facts presented by the other. 

New SEC Proxy Voting Disclosure Proposal

This tweet kicks off a string of 8 tweets on the new proposal:

1/ The @WSJ reported today that the SEC plans to require asset managers to provide more extensive disclosures about how they vote the shares of portfolio companies. https://t.co/4XIT2JQLAC #lawtwitter This annoys me.

— Steve Bainbridge (@PrawfBainbridge) October 1, 2021

The Economist’s Latest Jab at Peter Thiel Goes Awry in Middle-Earth Lore

The folks who write and edit The Economist have a rather odd mix of attitudes towards the military. On the one hand, they have long felt free to urge that American troops be sent to far off places to wage war. On the other hand, like so many left-liberals, there is often a note of snobbish disdain towards the men and women who serve and those who equip them.

One detects the latter in The Economist’s latest jab at one of its favorite bête noire’s; Peter Thiel. The article documents Thiel’s increasing interest in getting rich while using technology to support national security.

The Economist complains:

All this takes tech investing beyond Silicon Valley into new realms, some of them menacing to many observers. That will not worry Mr Thiel. Palantir is named after a “seeing stone” most often used by Sauron, ruler of J.R.R. Tolkien’s evil empire of Mordor in “The Lord of the Rings”. Evidently Mr Thiel, ever the contrarian, does not view Mordor as harshly as most Tolkien fans do. As he once told a friend: “I’d rather be seen as evil than incompetent.”

In the first place, I’d rather see Silicon Valley following Thiel’s efforts to defend America rather that aping the progressive weenies at Google who go into hysterics at the mere thought that Google might contract to provide support to the military that defends them.

In the second place, as a 50+ year fan and student of JRR Tolkien’s work, I take some offense at The Economist’s inept use of Middle-Earth lore. For one thing, they mention that in addition to investing in Palantir they mention that Thiel has also invested in a company called Anduril, which makes military drones. For some reason they fail to note that Andúril, also called the Flame of the West, was the sword which was reforged from the shards of Narsil in Rivendell. Aragorn bore Anduril throughout the War of the Ring. He used it to prove to the dead that he was Isilduir’s heir. He used it to defend Minas Tirith at the Battle of the Pelennor Fields. He used it when the Army of the West marched against Mordor. I suppose those facts didn’t fit the Economist’s narrative that Thiel is somehow on Mordor’s side.

As for the Palantir, it is true that Sauron had one. But they had been made by the Elves of Valinor in the First Age. By the time of the War of the Rings, there were only three known to exist. One was held by Sauron. One was held by Saruman and was recovered by Pippen after the fall of Isengard. One was held by Denethor the Steward of Gondor. 

Critically, Aragorn takes up the Palantir recovered by Pippen. He masters it and uses it to show himself to Sauron. He deceives Sauron into believing that Aragorn has the One Ring and that Aragorn will use it in attacking Mordor at the Black Gate. This deception causes Sauron to concentrate all his forces at the Gate, which (after some adventures with the Orcs) allows Frodo and Sam a clear path to Mount Doom.

You could thus say that the Palantir saved the day. But that too would be inconsistent with The Economist’s desire to portray (however ineptly) Thiel as evil.

The Chancery Daily on Delaware's New Demand Futility Standard (UFCWU v. Zuckerberg)

I blogged yesterday about United Food and Commercial Workers Union v. Zuckerberg, et al., No. 2018-0671-JTL, 2021 WL _______ (Sep. 23, 2021), in which the Delaware Supreme Court established a new standard for deciding whether demand is excused in derivative litigation. It's a long post, which situates the case in its context.

The Chancery Daily immediately blasted out a note about the case to its email subscribers. I suspect a longer form analysis of the case will be forthcoming. In the meanwhile, I note TCD's closing observation:

TCD notes that, earlier this week, the Supreme Court overruled John A. Gentile, et al. v. Pasquale David Rossette, et al., No. 573, 2005, opinion (Del. Aug. 17, 2006), which recognized dual-natured direct and derivative claims for “corporate-overpayment-to-a-controlling-stockholder,” finding that under Patrick Tooley, et al. v. Donaldson, Lufkin & Jenrette, Inc., et al., No. 84, 2003, opinion (Del. Apr. 2, 2004), claims for overpayment or dilution are solely derivative. The Chancery Salvo - Monday, September 20, 2021. TCD can confidently say that the week of September 20, 2021 has been the most significant during its publication lifetime in terms of the development of Delaware law governing stockholder assertion of claims on behalf of a corporation during its publication lifetime, and sympathizes with its many subscribers who are corporate law professors to the extent they are teaching corporate law this semester and suddenly find themselves having to modify lesson plans and syllabi -- presumably this happened well before you reached derivative claims, so at least there’s some runway.

FWIW, I regard The Chancery Daily as essential reading for anyone with an interest in corporate law and governance. I strongly encourage you to subscribe.

Alison Frankel on Delaware's New Demand Futility Standard (UFCWU v. Zuckerberg)

I blogged yesterday about United Food and Commercial Workers Union v. Zuckerberg, et al., No. 2018-0671-JTL, 2021 WL _______ (Sep. 23, 2021), in which the Delaware Supreme Court established a new standard for deciding whether demand is excused in derivative litigation. It's a long post, which situates the case in its context.

Top legal journalist Alison Frankel has also weighed in on the new case. It's a concise and useful summary of the decision.