As I have noted in recent posts on this site, the developing trend toward anti-ESG litigation has targeted, among other corporate initiatives, company adoption of diversity, equity and inclusion (DEI) programs. These and other developments have encouraged some companies to soft-pedal their initiatives in this and other areas, a phenomenon that has been described as “greenhushing.” But as noted in a recent memo from attorneys at the Wachtel Lipton law firm, while scrutiny for DEI initiatives may continue, companies and their boards properly may pursue DEI strategies as part of their companies’ overall missions. The August 19, 2023, memo in the Harvard Law School Forum on Corporate Governance can be found here.
As readers will recall, last week I 
On August 18, 2015, in an interesting opinion that takes a close look at exculpatory bylaw issues and the business judgment rule under North Carolina law, the Fourth Circuit affirmed in part and reversed in part the district court’s dismissal of the failed bank lawsuit the FDIC had filed against former directors and officers of Cooperative Bank of Wilmington, N.C. The appellate court affirmed the dismissal of all of the claims against the director defendants but reversed the lower court’s ruling as to the negligence and breach of fiduciary duty claims against the officer defendants.
Under time-honored standards, and as developed over time by Delaware’s court, the business judgment rule is, as is often stated, a “presumption that in making a business decision, the directors of a company have acted on an informed basis, in good faith, and in the honest belief that the action taken was in the best interests of the corporation.” However, as discussed in an interesting paper, in more recent times, courts have had to consider these principles in more troubling contexts, such as takeover battles or controlling shareholder transactions. As a result the courts have developed what BYU Law Professor 
