One of the more interesting recent developments in the U.S. corporate arena has been the recent emergence of a DExit movement – that is, the rise of the argument that companies would be better served to move their state of incorporation from Delaware to another state, usually Nevada or Texas. In the following
In the current heated DExit debate over whether companies incorporated in Delaware should reincorporate elsewhere (usually Texas or Nevada), one factor often cited is the expense of litigating in Delaware, usually as a shorthand reference to a contention that plaintiffs’ counsel’s fee awards in Delaware’s court are out of control. This argument typically cites to a few recent cases in which the fees awarded unquestionably were large; recent academic studies have taken the argument further to contend that the fees awarded in some cases were excessive.
However, a more recent study, based on a comprehensive overview of all Delaware court fee awards in the last ten years, challenges the premise that fee awards are out of control; the study finds, rather, that fee awards generally have been within reasonable bounds, and argues that a very small number of outliers should not drive the analysis of the issues. The study concludes that Delaware’s flexible approach to fee awards provides the appropriate incentives for plaintiffs’ counsel and includes safeguards to protect against excessive fee awards. Perhaps most significant in light of the current controversy is the study’s authors’ finding that “we find no evidence that Delaware fees are systematically excessive.”Continue Reading But ARE Plaintiffs’ Counsel Fee Awards in Delaware Excessive?
Insurance practitioners know that policy language matters. Insurance coverage advocates are also well aware that the application of the canons of construction can significantly affect contested coverage matters. These two considerations came together in a recent Fifth Circuit opinion, in which the placement of a single word — the word “the” — proved to be outcome determinative. The appellate court’s decision so clearly presents these fundamental policy interpretation issues, it should be mandatory reading for anyone involved in insurance policy wording issues. A copy of the Fifth Circuit’s opinion can be found here. A July 10, 2025 LinkedIn post about the decision by Geoffrey Fehling of the Hunton Andrews Kurth law firm can be found here.Continue Reading Does the Word “The” Change an Exclusion’s Meaning?
In order to try to stem the supposed tide of Delaware corporations reincorporating in other states (particularly Texas and Nevada), Delaware recently enacted a set of revisions to its corporate law. Whether or not the legislative changes are sufficient to reduce the number of so-called “DExits” remains to be seen. But the other states are not just standing by idly waiting to see what happens. They have been at work in their own corporate law laboratories. As discussed below, the legislatures of both Texas and Nevada have in recent days both passed significant revisions to their respective corporate laws. The changes not only represent significant shifts in the corporate law arena, but also could entail significant changes in the corporate litigation world, as well.Continue Reading Delaware Amended Its Corporate Laws, So Texas and Nevada Did, Too
One of the current hot topics is corporate and securities law is whether Delaware companies should reincorporate in other states, particularly in the states of Nevada or Texas. In the following guest post, Sarah Abrams, Head of Claims Baleen Specialty, a division of Bowhead Specialty, examines the state of incorporation of the new Texas Stock Exchange, which, surprisingly, turns out to be Delaware. I would like to thank Sarah for allowing me to publish her article on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Sarah’s article.Continue Reading Guest Post: The TXSE is Domiciled in Delaware
As readers of this blog undoubtedly are aware, one of the provocative topics that has emerged in recent months is whether companies incorporated under the laws of Delaware should redomesticate under another state’s law, with Texas and Nevada as the alternative states typically under discussion. This ongoing debate has gained momentum in recent days, as additional firms have signaled an intent to move on from Delaware. There have also been a number of other key developments, including the introduction of legislative initiatives and an important court decision, providing further context for the ongoing discussion. Because the discussion of this topic is unlikely to end any time soon, it is important to recognize and understand the recent developments.Continue Reading The Delaware Redomestication Debate Heats Up
In the following guest post, Richard M. Leisner takes a look at recent case law developments in Texas that underscore the key role of expert testimony as well as problems that can arise with expert witnesses. The article also provides important examples of the importance of the proper deployment of expert witness testimony. Leisner is a Senior Member in the Trenam law firm in Tampa. I would like to thank Richie for allowing me to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit a guest post. Here is Richie’s article.Continue Reading Guest Post: Avoiding Expert Witness Disasters
As readers undoubtedly have noted, one of the hot topics these days is the question whether corporations should change their state of incorporation from Delaware to that of another state, usually either Nevada or Texas. The dialog on this topic was already underway when Elon Musk supercharged the conversation by vowing, in reaction to the Delaware court’s disallowance of his $56 billion pay package, to have Tesla change its state of incorporation from Delaware to Texas. I suspect that the state of incorporation debate is going to be with us for some time to come, making it important for those of us who might have to participate in (or at least listen to) the conversation to get a handle on the key differences between the states.Continue Reading Delaware or Another State: What’s the Difference?
Many management liability exclusions contain contractual liability exclusions to clarify that the policy doesn’t provide coverage for contractual breach claims. However, as I have pointed out in prior posts, insurers, in reliance on the exclusion’s broad wording, often seek to apply these exclusions broadly, to apply to a wide variety of kinds of claims beyond contractual liability disputes. In a recent Fifth Circuit decision, the appellate court rejected an insurer’s attempt to apply a contractual liability exclusion to preclude coverage for an underlying breach of fiduciary duty claim. The reasoning of the Fifth Circuit in rejecting the insurer’s arguments provide policyholders with common sense reasoning on which to rely in seeking to avoid the application of the exclusion to noncontractual claims.Continue Reading Contractual Liability Exclusion Does Not Bar Coverage for Fiduciary Duty Claim
Regular readers of this blog know that among my hobby horse issues are the various questions surrounding late notice of claim. Timeliness is of course a standard conditions for complying with an insurance policy’s notice requirements. Policies also contain other notice conditions, such as, for example, where the notice must be sent and so on. In an interesting recent ruling, the Fifth Circuit examined a professional liability insurance policy’s conditions of notice, finding that while the timely provision of notice is a material condition, others of the policy’s notice conditions were immaterial, and held, applying Texas law, that the insurer could be relieved of its coverage obligations for the policyholder’s failure to comply with an immaterial condition only if the failure prejudiced the insurer.
Continue Reading Material and Immaterial Conditions of Notice of Claim