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Articles by Douglas Raymond
The Triumph of Private Ordering Since Manti Holdings
As we celebrate the 50th anniversary of Directors & Boards, we will take a look back at articles written for the 45th anniversary of the publication, revisiting them to see how corporate governance has evolved in the last five years. In this edition, we explore “Advance Waivers of Dissenters’ Rights,” a piece originally written by Doug Raymond and Todd Schlitz.
Proceed with Caution
Directors have broad latitude in how they manage the corporation, and it is often said that they can consider both the short-term as well as the long-term interests of the business and (within limits) its various constituencies. That balance between the long and short term may become subject to some tension in 2026.
The Narrowing Channels of Shareholder Communication
Directors owe fiduciary duties — the duty of loyalty and the duty of care. In most jurisdictions (including Delaware), the directors owe these duties to stockholders. Even where the duties are formulated differently, the stockholders are a most important constituency — one that has much to lose if the directors botch the job.
Board Minutes Are Not a Job for AI
It was bound to happen, but in the middle of a board meeting focused on an important strategic discussion, it still came as a surprise that the corporate secretary was recording the meeting using a generative AI program they were then going to use to create the meeting minutes. AI-based board tools are becoming increasingly popular in boardrooms and are being marketed as reducing the often-substantial effort required for setting agendas and preparing minutes.
Stepping Outside the Echo Chamber
Some of the riskiest decisions in the boardroom aren't made in haste — they're made in harmony. Not the productive kind, but the kind that stems from homogeneous thinking, excessive deference to a powerful CEO and unchallenged assumptions. When everyone around the table sees the world from a similar perspective, asks the same questions and draws from shared experiences, blind spots can remain undetected and strategic judgment narrows.
Delaware's Recalibration Didn't Happen in a Vacuum
Delaware just made life a little easier for corporate boards, particularly at companies with a controlling stockholder. On March 25, 2025, Governor Matt Meyer signed amendments to the Delaware General Corporation Law (DGCL) that expand protections for directors and officers, give corporations more control over stockholder demands and codify clearer safe harbors for conflicted transactions. But these amendments did not come out of nowhere.
Navigating a Forced Sale
Boards sometimes find themselves under severe pressure to sell the company. Sometimes, it's due to market dynamics or an aggressive suitor. Sometimes, it's a significant stockholder looking for liquidity. And sometimes it's because the company has run out of cash and the board is worried about making payroll. Two recent Delaware Court of Chancery decisions, In re Dura Medic Holdings Inc. Consolidated Litigation and Manti Holdings LLC v.
The Evolving Landscape of Shareholder Activism
Generally speaking, shareholder activism has meant the efforts of shareholders to influence decisions by public company boards through leveraging their rights as shareholders.
Strategic Alignment in CEO Recruitment
The primary obligation of the board is to oversee the management of the corporation's business in the best interests of the shareholders (or, as provided by the corporation law of some jurisdictions, in the best interests of the corporation). In general, the board has the flexibility to decide the time horizon over which it will consider that best interest, whether it is measured in months, years or even decades.
The Walls Have Been Breached! (Now What?)
Imagine this thought experiment: You're the board chair or lead director of a public company. Everything is quiet as you head to your beach house for the long holiday weekend. But then your cellphone rings. It's your CEO and the general counsel. They frantically tell you that the company has been hit by a ransomware attack. Its core systems are frozen and they've been sent to a website where a multimillion-dollar ransom (payable in cryptocurrency) is being demanded to restore functions.
To Whom Do Delaware Directors Owe Fiduciary Duty?
In James McRitchie v. Mark Zuckerberg, et al., Vice Chancellor Travis Laster of the Delaware Court of Chancery waded back into the shareholder vs. stakeholder debate and reaffirmed that, at least for Delaware corporations, directors owe “firm-specific fiduciary duties” to their stockholders only and that these fiduciary duties require directors to seek to maximize for the benefit of those stockholders the value of the corporation they serve over the long term.
The Fallout from the Match Group Case
In almost all situations, the board has wide latitude when making decisions. Intended to encourage risk-taking and to prevent stockholders and others from second-guessing board action, the “business judgment rule” creates a strong presumption that board decisions are made in the best interests of the business and company. If stockholders disagree with board decisions, their usual recourse is to vote out the directors with whom they disagree, not to sue them.
A Legal Challenge to Stockholder Agreements
Companies with significant stockholders frequently have agreements with them addressing their rights to sell (or buy) shares, nominate directors and approve important corporate actions, such as hiring or replacing the independent auditors and senior management, paying dividends, and committing to significant acquisitions and divestitures. This has been very common with venture and strategic investments, activist settlements and situations where the corporation has a large stockholder.
Was This Column Written by ChatGPT?
Over the last year, ChatGPT and similar programs have become ubiquitous. They are authoring sales pitches and other customer interactions, writing legal briefs and scripts for movies and television shows, and editing public speeches and perhaps even columns in journals. These programs rely on generative AI, a rapidly evolving technology that has the ability to produce original content, learn from data and automate decision-making.
Understanding Delaware's MFW Process
It is common for company managers to enter into a transaction with people or entities they know or with whom they have a close relationship. There are many reasons for this: trust, familiarity with the business or industry, or a track record of success. But as corporate directors know, transactions involving a controlling stockholder or control group come with unique risks.
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