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15 Harv. Bus. L. Rev. Online 1 (2024-2025)

handle is hein.journals/hblro15 and id is 1 raw text is: SOAP OPERA SUMMER: FIVE PREDICTIONS ABOUT DELAWARE LAW'S RESPONSE TO NEW DGCL 122(18) MARK LEBOVITCH* Predictability and stability are often cited as leading reasons for why Delaware's corporate law system dominates the competition for domiciling business entities. However; the first half of 2024 was anything but predictable and stable for Delaware's legal community. Rarely has an amendment to the Delaware General Corporation Law (DGCL) triggered as much public debate as SB 313, which became effective as of August 1, 2024. Normally staid legal policy discussions triggered high passions to declare which was the greater risk to Delaware's standing as the global leader in corporate law: a few recent judicial opinions that would have altered certain market practices or the legislative amendment seeking to nullify those opinions. This article focuses on the most controversial aspect of SB 313. New DGCL Section 122(18) overrides the Court of Chancery's February 23, 2024, opinion in West Palm Beach Firefighters' Pension Fund v. Moelis & Company (Moelis), by broadly allowing corporate boards to contractually delegate to any stockholder or prospective stockholder the power to cause the company to act or refrain from acting in almost any manner; including many decisions traditionally reserved for the board itself Now that the debate about the impetus behind and wisdom of the new legislation is over; this article attempts to assess how the new law will actually affect Delaware's corporate legal landscape. Looking beyond the atypical drama of the past six months, this article offers five predictions and observations about how new Section 122(18) may affect the corporate world going forward. * Adjunct Professor of Law, University of Pennsylvania Carey Law School and Lecturer in Law, Columbia Law School. Thanks to Professors Anat Alon-Beck, Jill Fisch, Elizabeth Pollman, Jesse Fried, Edward Rock Marcel Kahan, Emilio Catan, Robert Bishop and George Georgiev, and practitioner Joel Fleming, for their comments and guidance. Before retiring from the practice of law in September 2023, I led the prosecution of several of the cases cited herein. Comments are welcome and appreciated, and can be sent to me at marklebo@law.upenn.edu.

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