Delaware Update: Confidentiality of Corporate Records, Board of Directors Oversight, Shareholder Derivative Claims

Analyzing Recent Cases and the Impact on Corporate Practice

A live 90-minute CLE webinar with interactive Q&A

Wednesday, April 8, 2020

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, March 13, 2020

or call 1-800-926-7926

This CLE webinar will examine the most significant recent court decisions affecting Delaware corporate law. The panel will explain how these changes can impact the release of corporate records, the oversight obligation of boards of directors in "mission-critical" issues, and shareholder derivative actions going forward.


Delaware is the state of incorporation for 66% of the Fortune 500 and over half of all companies whose securities trade on the NYSE and other exchanges. Delaware's Supreme Court and Chancery Court are the preeminent venues for resolving various corporate disputes. Recently, there were several decisions related to essential aspects of corporate law.

Lebanon County Employees’ Retirement Fund v. AmerisourceBergen Corp. sets out to interpret DGCL Section 220 for corporate counsel by providing the framework of the prerequisites that must be satisfied--beyond what the statute explicitly states for one to make a successful claim. The case also illustrates that Rule 220 is often more complicated than first anticipated.

Marchand v. Barnhill more clearly articulated the monitoring, reporting, and oversight requirements that the Caremark decision places on directors. Counsel to boards will need to clarify and expand on these requirements as set by the Delaware Supreme Court. Directors will need advice on compliance, even in highly regulated industries, to install a system for review in place.

Finally, the Delaware Supreme Court affirmed the dismissal of a shareholder's suit against Uber Technologies Inc.'s directors because the plaintiff failed to make a "pre-suit demand." The court sought to apply the Rales test in this matter while distinguishing how the facts in this matter differed from Disney Co. Derivative Litig of 2006.

Listen as our authoritative panel discusses these critical cases of fundamental corporate principals as determined by the Delaware courts and looks towards the landscape of future decisions by the Delaware judiciary.



  1. Overview of current cases decided by Delaware Supreme Court and Chancery Court
  2. Lebanon and DGCL 220
    1. Statutory requirements
    2. Prerequisites beyond the statute
      1. Proper purpose
      2. Credible basis requirement
      3. Scope of documents for production
  3. Developments regarding Directors' Caremark duty to monitor where comprehensive laws govern the company's mission-critical operations
    1. Marchard v. Barnhill and In re Clovis Oncology
    2. Boards of companies in highly regulated industries must actively monitor and oversee compliance with the regulatory environment
    3. Enhanced risk of personal liability for directors
    4. Steps to take in light of decisions
  4. Requirements for derivative actions and current application of Rales test
  5. Cases on the horizon for Delaware judiciary


The panel will review these and other high priority issues:

  • What are the prerequisites under DGCL 220 for a successful claim, both within and outside of the statute to maintain compliance with Lebanon?
  • What advice directors will need to create an oversight system under the requirements under Caremark?
  • How a shareholder can retain his rights to proceed against a board in a derivative action
  • What further steps a corporate board should take for best practices in compliance with current Delaware case law?


Davis, Gardner
Gardner F. Davis

Foley & Lardner

Mr. Davis focuses his practice on corporate law. He advises boards of directors and special committees in regard to...  |  Read More

Additional faculty
to be announced.

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