Del. Caremark Opinion Shows Shift In Deference To Boards Of Directors

Publisher: Law360

July 28, 2020

Day Pitney Author(s) Michael K. Furey

Michael Furey authored an article, "Del. Caremark Opinion Shows Shift In Deference To Boards," published by Law360. Furey discusses the recent Delaware Supreme Court's decision in Marchand v. Barnhill, after a third Delaware Chancery Court judge refused to dismiss a derivative action asserting a Caremark oversight claim against corporate directors. Previously, motions to dismiss Caremark claims were granted on a routine basis, but in three recent decisions the Delaware Chancery court did not dismiss the claims. This has generated interest over whether Marchand represents a change in the law, a change in judicial attitude or another example of bad facts making bad law. Furey believes these recent decisions have not fundamentally changed the law but represent a new willingness on the part of courts to review claims that boards of directors have failed to monitor management in a less deferential manner to directors than in the past. These decisions are part of a trend towards the use of compliance programs, including Board committees, as a way to prevent corporate wrongdoing.

You can read the full article here (subscription).

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