OK, here si one specific rule change:
"Rule 23 - Class Actions (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class.."
In what way, specifically, is that "activist" or "political" against Elon or Tesla?
I ask because in looking up the change I not only see no such thing- I see it's primarily just clarifications to bring the existing state rules in alignment with Federal rules of Civil Procedure so that authorities interpreting the federal rule could be cited more easily as persuasive authority for the interpretation of Rule 23.
What, exactly, is "activist" about that?
Or did you just google "changes at the chancery" and repost whatever it spit out without checking if it's a substantive or activist change in actual fact?
Here's a breakdown from a law firm discussing these changes-- please point to which parts, specifically, are "activist" or anti-Tesla please?
In 2023, Rule 23 was revised to align its language in certain respects with Federal Rule of Civil Procedure 23 so that authorities interpreting the federal rule could be cited more easily as persuasive authority for the interpretation of Rule 23.
Except as noted, no substantive change in the interpretation of the rule was intended, and prior Delaware authorities interpreting the rule remain applicable. In particular, the revision deletes the last sentence of prior Rule 23(aa) as unnecessary and replaces the term "compromise" in prior Rule 23(f) with "settlement." No substantive change in interpretation was intended.
The revision makes the following changes to conform Rule 23 more closely to Federal Rule 23 and current practice:
The revision removes the requirement to certify a class "[a]s soon as practicable" as inconsistent with current practice. Consistent with the 2003 amendments to the federal rule, the revision does not provide for "conditional" certification orders.
Rule 23(d) addresses practice regarding class counsel; it is new and modeled on current practice.
Rule 23(f) addresses practice regarding dismissal and settlement; it is mostly new and modeled on the federal rule and current practice. Rules 23(f)(1), 23(f)(2)(A), and 23(f)(3)(A) are carryovers from the prior rule.
Rule 23(g) addresses attorney's fees; it is new and modeled on the federal rule and current practice.
Where's the activism exactly?
Is it in the room with us now?
I'm sad to have so offended you.
People making allegedly factual claims they're then unable to in any way support should offend everyone.
Nearly all the changes in question originate with recent revisions in Delaware Chancery Court procedures. One specific change is the source of most dismay among those Delaware-incorporated companies I know about:
Read Rule 23 - Class Actions, Del. R. Ch. Ct. 23, see flags on bad law, and search Casetext’s comprehensive legal database
casetext.com
Citation of "dismay" requested. Ideally from actual lawyers.
Since again they're mostly just aligning the delaware court with existing rules of civil procedure.
Further- the date on those rules YOU just linked to is months
after the Elon compensation case was filed/certified so how is it "activist" let alone "relevant?"?
The new Chancery Court Chancellor in 2021 has been notable for changes in court practices regarding Rule 23 and also regarding caution-related issues. Her wiki only discusses the most disputed cases:
en.wikipedia.org
This link contains 0 mentions of Rule 23.
There's only 3 "notable" cases cited at all... two of which had nothing to do
at all with class actions--- just cases requiring a company to honor the merger contract they signed (one being the twitter case-- where again
the judge never ruled on the case at all since Elon knew he had no real chance to win that in any court and went through with his obligation in the end out of court). The third is the Toretta decision, where again- please cite any way in which rule 23 was applied in any "activist" manner?
There is muh more history of changes since 2021, but perhaps the most notable is the class action certification process.
What, specifically is "notable" about it? Because again the rules as revised are basically the same way all the other courts run things-- Delaware was just updating to modern language for consistency.
Rule 23 implies changes that the individual judge interprets.
Can you cite any such ones this specific judge has issued that are activist?
The histrionics regarding the Musk cases are the result, to a large extent, of the textual explanations attached to Chancellor McCormick's decisions.
Again- I asked for
any examples at all of this judge being "activist" in
any other case of hers at all
Because she's ruled on many cases. Surely if she's an "activist" judge you can give
specific examples elsewhere?
If not there's no choice but to return the earlier conclusion--- folks are just calling any judge who makes a single ruling they dislike "activist judges" without having any ability to support that argument from anything else in the entire body of work of that judge.
In context, changes in those practices do reflect a major departure from tradition, which dates to 1792:
A Short History of the Court of Chancery - Court of Chancery - Delaware Courts - State of Delaware
The centuries-long history of corporate interests really had few major consequences until 2021.
The specific history, as described by USA Today some time ago was:
"Corporations also favor Delaware because case law has established the “business judgment rule,” which dictates that judges shouldn’t second-guess a business’ decisions when they are made in good faith and with due care, even if those decisions have negative consequences."
The 2021 revisions have largely eliminated that legacy, with the Musk Compensation decision being the most clear and unequivocal rejection of that case law.
Which 2021 rules, specifically, are you talking about here? Rule 23 has nothing to do with any of that.
Further-one of the
fundamental elements of her ruling was the deal with Elon was
not made in good faith.... instead she found it was made by a board that wasn't dealing at arms length, and didn't properly disclosure that or their close relationship with Elon to the voters.
Again you can
disagree with that conclusion-- but it's based
fundamentally in the entire fairness doctrine.
Which is NOT from 2021. It's not "new" and it's not "activist"
in fact it's from years before this specific judge was ever on the court. It's been around
for decades
So again you appear to have googled a bunch of stuff you didn't understand then thrown it at the wall in hopes something would stick, without being able to be specific about anything at all.
. On the other hand, I did not address the case histories for Chancellor McCormick.
This may not be what you wanted
I mean- it was the literal question asked.
So you've now spent a fairly insane amount of time not answering it.
While broadening the claim that the ENTIRE COURT is "activist" without actually being able to give any examples, and only citing rules changes you're misunderstanding or misrepresenting the contents of and which you can't cite impacted the Elon/Toretta case specifically
at all because again Entire Fairness is [B}not new[/B] it's been around for a long time.
FWIW, the only place other than Delaware being considered of which I know is Nevada.
Only Musk companies seen to regard Texas as a viable option at this time, since there is zero history and the new Texas law is structured to ensure continuing political control.
Yup--- that's why I voted no on that question (but YES on Elons compensation, FWIW).
I'd have happily voted Yes for Nevada (and said so here when Elon initially raised the idea of moving out of DE...) they have a solid business court system with a solid history. Texas... does not.
I hope that helps. Delaware corporations are not 'leaving in droves' and none are so imprudent as to announce such intentions. They are quite conscious that the corporate governance history in Delaware is no longer followed. That makes every CEO nervous, makes Boards nervous and makes 'errors and omissions' policies rather harder to acquire.
Primarily the entire fairness stuff (which again,
has been around for decades) is simply there to encourage BoDs to make sure their paperwork and decision making is above board in cases where potential conflicts of interest exist... simply insure they're independent decisions reached fairly and at arms length with all voting parties fully informed and there's no issue and the doctrine won't apply. The VAST majority of cases that have come before the court in those
decades of cases are not subject to it.
But if they're that worried, Nevada is an excellent alternative.