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Delaware is set to adopt sweeping changes to its governance laws making it more hospitable to billionaire-led companies such as Tesla and Facebook, as it faces growing competition from other states for corporate domiciles.
The changes include limiting shareholder lawsuits against founder-led companies. Delaware lawmakers gave their final approval on Tuesday, and Governor Matt Meyer, an outspoken supporter of the bill, is expected to sign it into law.
Delaware generates more than $2bn a year from fees paid by corporations to register in the state. Though their corporate governance rules are already relatively lenient for most companies with widely dispersed shareholders, the state has faced blowback from Silicon Valley tech groups run by CEO founders.
The changes to Delaware’s corporate law were hastily unveiled just a month ago as the state’s power brokers worried that a series of recent rulings had antagonised companies led by Silicon Valley founders or private equity firms that, in response, could move their incorporations to more lax jurisdictions such as Nevada and Texas, which have been marketing themselves to large companies. The US allows states to govern so-called internal affairs matters such as corporate governance.
Chief among the controversial decisions was the nullification of Elon Musk’s $55.8bn pay package awarded by the Tesla board and twice approved by shareholders.
Even as the Delaware Supreme Court has yet to issue a final ruling on the Musk case, Tesla and several other of the billionaire’s companies have already migrated their incorporations.
The board of Facebook, which faces a coming trial in Delaware over its board’s oversight of customer data policies, has also said it is pondering a move.
Last week, Simon Property Group, which is managed by the billionaire Simon family, said it would seek shareholder approval to move its domicile to Indiana where it is headquartered. The company cited “the increasingly litigious environment facing corporations incorporated in the State of Delaware, and the material costs such litigation imposes, both in terms of financial and human resource cost”.
Governor Meyer recently said: “We must once again demonstrate why we retain an unparalleled reputation for clarity, predictability and fairness in global markets.”
The new law creates so-called safe harbours for transactions where companies can automatically use independent directors or shareholder votes to immediately defeat claims of conflicts of interest. The legislation also relaxes the definition of independence when deciding if a board member has a conflict in a challenged transaction and also limits the ability of shareholders to search emails and text messages of directors and officers.
More than 60 per cent of the S&P 500 is incorporated in Delaware and the billions in franchise fees allow the state to avoid implementing a sales tax. Critics of the new rules have nicknamed the legislation “the billionaire’s bill”, saying it would allow powerful CEOs to more easily engage in self-dealing as the threat of shareholder lawsuits becomes more muted.
A group of top law professors have questioned the bill, arguing it upends dozens of corporate law precedents and would tie the hands of Delaware judges with expertise in governance issues. Lawmakers considered a compromise offered by Eric Talley of Columbia Law School, requiring companies to proactively opt in to the new rules, but the body rejected the measure in favour of the blanket changes.
Corporate advocacy groups have supported the changes. But some large investors have criticised the legislation as too deferential to corporate leadership.
“Many states provide corporate law that is significantly more investor-protective than Delaware law would be,” Calpers, the influential $500bn California state pension, said in a letter to the legislature. “Those states do not have a history of statutorily overturning trial court decisions that go against rich and powerful corporate insiders.”
