SMU Corporate Governance Initiative · Hilltop Forum on Capital Markets
The Hilltop Docket
Issue No. 16 · Monday, August 31, 2026 · Week in review
Issue No. 16 · Monday, August 31, 2026 · Week in review · Covering August 23–29, 2026.
Delaware built a safe harbor for directors and officers. Does it leave their bankers exposed? Two Court of Chancery decisions this year answer in opposite directions — Goldman Sachs stayed in the EngageSmart case; Morgan Stanley got out of the Envestnet case. Is that the work of Senate Bill 21, as the reporting has it? Neither opinion mentions the statute, and both transactions closed before it. And if the same complaint were filed against a banker in Texas, would there be a claim to plead at all? The Texas Supreme Court expressly reserved the question in 2017, after declining narrower versions of it in 1996, 2001 and 2010. Delaware has two answers and a statute neither opinion cites; Texas has one settled rule from 1942 and a question its highest court has left open across three decades of chances to answer it — which of those gives a board more certainty?
The Delaware file · the safe harbor and the banker
Delaware’s 2025 amendments gave directors, officers, and controllers a statutory route through conflicted transactions. They did not extend that route to the bank that ran the sale process. The structural observation follows easily enough — narrow the exposure of the people at the table and the claim looks for someone else to name — and it has been made in the financial press. What the Docket can add is the part that is checkable: what the two decided cases actually hold, and what they conspicuously do not say.
Two Court of Chancery decisions this year run in opposite directions on the same claim. Read together they do not describe a doctrinal shift. They describe a pleading line.
1 · Goldman Sachs stays in the case
| Citation | In re EngageSmart, Inc. Stockholder Litigation, C.A. No. 2023-1093-JTL (Del. Ch. Feb. 27, 2026) (Laster, V.C.) — signed opinion |
|---|---|
| Document | Opinion Regarding Motions to Dismiss |
| Submitted | November 13, 2025 |
| Decided | Friday, February 27, 2026 |
| Transaction | Vista Equity Partners’ $4 billion take-private of EngageSmart at $23 per share; General Atlantic, the controller, rolled over for a 35% stake and received a $500 million post-closing dividend the opinion describes as undisclosed |
A sell-side financial adviser’s central role in running a sale process can sustain a pleading-stage claim for aiding and abetting the fiduciary breaches alleged in the transaction itself, even where the same complaint fails to state that claim against the favored buyer. The complaint’s separate disclosure-based aiding-and-abetting theory against the adviser was not decided: the court deferred it under Court of Chancery Rule 12(i).
The claims split along a line that is easy to miss in summary. Count V asserted aiding and abetting against Vista, the buyer. Count VII asserted it against Goldman Sachs, the banker. The complaint reached one and not the other, and the opinion says so in its own opening summary:
“Finally, the complaint states a claim for aiding and abetting breaches of fiduciary duty against the company’s financial advisor. The complaint fails to state an aiding and abetting claim against the favored buyer.” — In re EngageSmart, introduction, pp. 2–3 · verbatim verified
What survived is precisely the process claim. A sentence widely quoted from this opinion — and quoted accurately — sits somewhere else: in the court’s disclosure analysis, under its discussion of Goldman. The defendants had argued that the proxy owed stockholders less detail about Goldman’s conflicts “because Goldman was the Company’s financial advisor, not the Committee’s financial advisor, and because Goldman did not render a fairness opinion.” The court rejected that:
“Goldman’s central role in the sale process renders the defendants’ argument untenable. Goldman was the principal banker running the sale process.” — In re EngageSmart, disclosure analysis (heading “ii. Goldman”) · verbatim verified
That distinction carries the weight of this opinion, so it is worth stating plainly. The aiding-and-abetting claim against Goldman that goes forward is built on the sale process itself. The complaint’s parallel theory — that Goldman aided and abetted a disclosure breach — was not sustained and was not dismissed: in the closing pages of the opinion the court deferred it under Rule 12(i), to travel with the disclosure claims against the fiduciaries. Anyone citing this case for the proposition that a banker can be liable for a bad proxy is citing a ruling the court has not yet made.
When a company is sold, a company and/or the board may hire an investment bank to run the auction. Shareholders here said the process was rigged in favor of one buyer and that the proxy did not tell them the whole story. They sued the directors, the buyer, and the bank.
The court let the case against the bank go forward and threw out the matching case against the buyer. Think of an estate auction where the auctioneer quietly tips off a favored bidder. The tipped-off bidder owes the family nothing — he came to buy, nothing more. The auctioneer owes them the auction itself: running the sale is the job, and it is what makes the auctioneer answerable for how the sale was run. That is what kept the bank in the case and let the buyer out of it. The separate complaint about what the paperwork did or did not tell shareholders, the court set aside to decide another day.
2 · Morgan Stanley gets out
| Citation | Berger v. Fox, C.A. No. 2025-1183-BWD (Del. Ch. July 24, 2026) (David, V.C.) — signed opinion |
|---|---|
| Document | Memorandum Opinion Granting Motions to Dismiss (56 pp.) |
| Submitted | July 1, 2026 |
| Decided | Friday, July 24, 2026 |
| Transaction | Bain Capital Private Equity’s all-cash take-private of Envestnet, Inc., closed November 2024, at $63.15 per share |
| Caption note | The opinion is captioned Berger v. Fox, not In re Envestnet, Inc. Stockholder Litigation; the consolidated form does not appear on the face of the document |
Where a merger is approved by a fully informed, uncoerced vote of disinterested stockholders, Corwin cleansing disposes of the entire complaint, including an aiding-and-abetting claim against the sell-side financial adviser. Independently, such a claim fails where the complaint does not allege that the adviser acted without board direction, concealed information from the board, or otherwise misled it.
The court reached the same claim and dismissed it, on two independent grounds. The first is Corwin, and it does the primary work:
“A dismissal under Corwin disposes of the entire Complaint, including the aiding and abetting claim asserted against Morgan Stanley.” — Berger v. Fox, p. 36 n.12 (PDF p. 38) · verbatim verified
The second ground is the pleading itself. The court found the complaint short of the knowledge Delaware requires:
“But even assuming Morgan Stanley had an incentive to favor Bain over its other clients, the Complaint still fails to allege that Morgan Stanley took any action without Board direction or approval or concealed information from or otherwise misled the Board.” — Berger v. Fox, p. 53 (PDF p. 55) · verbatim verified
The disposition follows:
“Because the Complaint fails to state a claim against Morgan Stanley for aiding and abetting a breach of fiduciary duty, Count III of the Complaint is dismissed.” — Berger v. Fox, p. 55 (PDF p. 57) · verbatim verified
One point of doctrine deserves preserving, because it is the part that will travel. The court did not treat exculpation of the directors as automatically ending the claim against the adviser. It expressly preserved the route through an exculpated breach of the duty of care, following RBC Capital Markets, LLC v. Jervis, 129 A.3d 816 (Del. 2015) — and then dismissed because the complaint pleaded no care breach in which Morgan Stanley could have knowingly participated. The adviser’s exposure survives the directors’ exculpation as a matter of doctrine. It failed here on the facts pleaded.
Same kind of claim, opposite result. Shareholders said Envestnet’s bank steered the sale toward Bain Capital. The court dismissed the case, first because the shareholders had voted to approve the deal after being told everything that mattered — and a fully informed yes vote ends the matter for everyone named, the bank included.
The second reason is the one to hold onto. Think of an architect who builds exactly what the owner approved from plans the owner read. You can dislike the building, but you cannot sue the architect for it. The complaint never alleged the bank went around the board or kept anything from it — so there was nothing for the bank to have knowingly helped along.
3 · The statute nobody cited
The financial press attributes this cluster of suits to Delaware’s 2025 amendments — the reasoning being that narrowing exposure for directors, officers, and controllers left the adviser as the defendant still standing. Bloomberg’s Sabrina Willmer put it that the revision “made it harder to sue top executives and directors in insider deals,” while “banks didn’t get the same protection, making them a target for plaintiffs looking for new pathways to pursue such cases” (“JPMorgan, Morgan Stanley Fight Suits Over Role in Buyout Deals,” Aug. 25, 2026, as reprinted by Claims Journal). As a description of incentives, that is coherent.
As a description of these two opinions, it is not yet established. Neither EngageSmart nor Berger v. Fox mentions Senate Bill 21. Neither mentions 8 Del. C. § 144. Both are decided on ordinary fiduciary and pleading grounds — Corwin, Mindbody, RBC Capital, Columbia Pipeline — and both transactions predate the amendments: the EngageSmart action was filed in 2023, and the Envestnet merger closed in November 2024.
So has the safe harbor redirected the plaintiffs’ bar toward the banks? The two decided cases do not say, because neither one had occasion to. That is a question the docket will answer over the next year, in the suits now pending over the Snap One and Couchbase transactions — neither of which this issue treats, because neither has been read here in a signed opinion. A third is instructive for a different reason: on the Skechers buyout, the only complaint that named a bank did not survive the lead-plaintiff contest, so that claim will not be tested at all (Willmer’s same report).
Delaware has a named cause of action here. Aiding and abetting a breach of fiduciary duty is settled Delaware law, and its elements were applied in both opinions above. The controlling authority on an adviser’s exposure is RBC Capital Markets, LLC v. Jervis, 129 A.3d 816 (Del. 2015), which Berger v. Fox pin-cites at 862 for the proposition that the claim may rest on an exculpated breach of the duty of care.
Texas has no such settled claim, and the gap is at the threshold rather than in the details. In First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 224 (Tex. 2017), the Texas Supreme Court wrote that “this Court has not expressly decided whether Texas recognizes a cause of action for aiding and abetting,” and assumed the tort’s existence “without deciding” because the parties had not briefed it. The court had flagged a closely related question two decades earlier in Juhl v. Airington, 936 S.W.2d 640, 643 (Tex. 1996) — whether concert-of-action liability under Restatement (Second) of Torts § 876 is recognized in Texas: “whether such a theory of liability is recognized in Texas is an open question.” Between those two decisions the court twice declined a narrower version — whether Texas recognizes aiding and abetting fraud “separate and apart from a conspiracy claim” — both times in footnotes. See Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913, 930 n.28 (Tex. 2010); Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 583 n.7 (Tex. 2001). Three decades of reservations, and the question is still open at that court. At least three courts of appeals have answered it in the negative. Hampton v. Equity Trust Co., 607 S.W.3d 1 (Tex. App.—Austin 2020, pet. denied) held that “a common-law cause of action for aiding and abetting does not exist in Texas,” and it collects AmWins Specialty Auto, Inc. v. Cabral, 582 S.W.3d 602, 611 (Tex. App.—Eastland 2019, no pet.), and Solis v. S.V.Z., 566 S.W.3d 82, 103 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). All three are intermediate appellate authority, not holdings of the Texas Supreme Court, and the distinction matters to anyone predicting an outcome.
What Texas does have, and has had since 1942, is the neighboring doctrine. In Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509, 514 (Tex. 1942), the court held: “It is settled as the law of this State that where a third party knowingly participates in the breach of duty of a fiduciary, such third party becomes a joint tort-feasor with the fiduciary and is liable as such.” Parker itself treats the two as distinct — pleading that a defendant “knowingly” participated in a breach was held not to give fair notice of an aiding-and-abetting claim (514 S.W.3d at 225).
The statute books add nothing on this point, and the negative is worth stating with its method: no provision of the Texas Business Organizations Code has been identified that imposes liability on a third party, an adviser, or an agent for assisting a fiduciary’s breach. Chapter 7 limits the liability of managerial officials themselves; Chapter 21’s derivative subchapter governs shareholder standing; and S.B. 29 — the 2025 governance package — runs in the opposite direction. Its new § 21.419 supplies good-faith presumptions for directors and officers, and it reaches only a corporation with voting shares listed on a national securities exchange or one that has affirmatively elected into the section in its governing documents (§ 21.419(a)). It insulates covered insiders. It does not address outsiders at all.
So would a Texas court hearing the EngageSmart facts analyze the banker’s exposure under Kinzbach knowing participation rather than aiding and abetting, and would the pleading standard differ? No Texas decision has been shown to answer that. What the sources do establish is the shape of the difference: Delaware supplies a named claim with elements a court has applied to a sell-side adviser in both decisions treated here, and Texas supplies a joint-tortfeasor rule from 1942 whose modern application to a merger banker is undecided. For a board weighing the two jurisdictions, that is not an argument about which is safer. It is an argument about which uncertainty it would rather hold.
For the record
The register shows no opinions for this week. The Texas Business Court’s official opinions register was read twice on Saturday, August 29, 2026, the second read cache-busted. Both reads agree: the highest citation on the register is 2026 Tex. Bus. 60, signed Monday, August 17, 2026, and no entry is numbered 61 or higher. Both 2026 Tex. Bus. 59 and 2026 Tex. Bus. 60 were treated in full in Issue No. 15.
The opinions feed is running behind the register. The canonical opinions.json carries a generation stamp of August 18, 2026 — thirteen days before this issue’s publication date. Its highest citation agrees with the register at 2026 Tex. Bus. 60, and the feed carries 123 records; the register’s own entries were not independently tallied. Nothing published here rests on the stale copy; coverage in this issue is bounded by the register, not by the feed.
These are statements about the register and about our feed. They are not statements about what the court did or did not decide: opinions are posted on the court’s schedule, and an opinion signed this week could appear on the register after this issue goes out.
Dockets and calendar
The settings below were derived from the docket-alert export of August 15, 2026 and were published in Issue No. 15. They were not re-derived this week. The current docket_alerts.json, generated August 22, 2026, carries no scheduled-setting field that this issue’s preparation could read — its records key on filing_date — so the table is republished unchanged rather than refreshed. Every entry should be confirmed against the live docket before anyone travels.
| Date | Matter | Court · judge | Setting |
|---|---|---|---|
| Mon, Aug 31 9:00 a.m. | PanOptis Patent Management, LLC, et al. v. Huawei Technologies Co., Ltd., et al. 24-BC01A-0015 | 1st Div. (1a) · Bouressa | Motion |
| Wed, Sep 2 10:30 a.m. | Cobalt Falcon, LLC v. AXS Investments, LLC 25-BC01A-0023 · 2026 Tex. Bus. 43 | 1st Div. (1a) · Bouressa | Pre-trial conference |
| Fri, Sep 4 10:00 a.m. | Beard v. Beard 25-BC01B-0036 | 1st Div. (1b) · Whitehill | Pre-trial conference |
| Mon, Sep 14 9:00 a.m. | Plains Oryx Permian Basin Pipeline LLC, et al. v. Texas-New Mexico Pipe Line Company, et al. 25-BC11A-0030 · 2026 Tex. Bus. 29 | 11th Div. (11a) · Bullard | Pre-trial conference |
| Wed, Sep 16 9:00 a.m. | Cobalt Falcon, LLC v. AXS Investments, LLC 25-BC01A-0023 | 1st Div. (1a) · Bouressa | Bench trial |
| Mon, Sep 21 9:00 a.m. | Plains Oryx Permian Basin Pipeline LLC, et al. 25-BC11A-0030 | 11th Div. (11a) · Bullard | Bench trial |
| Thu, Sep 24 2:00 p.m. | Clean Hydrogen Works, LLC, et al. v. Denbury Carbon Solutions, LLC, Exxon Mobil Corporation, et al. 25-BC11A-0017 · 2026 Tex. Bus. 58 | 11th Div. (11a) · Adrogué | Pre-trial conference |
| Mon, Sep 28 9:00 a.m. | Clean Hydrogen Works, LLC, et al. 25-BC11A-0017 | 11th Div. (11a) · Adrogué | Trial on the merits |
| Mon, Sep 28 10:00 a.m. | Beard v. Beard 25-BC01B-0036 | 1st Div. (1b) · Whitehill | Jury trial |
| Wed, Sep 30 9:30 a.m. | Clean Hydrogen Works, LLC, et al. 25-BC11A-0017 | 11th Div. (11a) · Adrogué | Special appearance |
The sequencing anomaly flagged in Issue No. 15 stands unresolved: the export places a special appearance in Clean Hydrogen Works on September 30, two days after a trial on the merits. We print the export as it stands and flag it rather than quietly reordering it.
Carried forward
- The pending adviser suits over the Snap One and Couchbase transactions — no signed opinion read in either; cause numbers still to be obtained. On the Skechers buyout the only complaint naming a bank did not survive the lead-plaintiff contest, so nothing there is pending against an adviser.
- The Daley claims in CAM Industrial Solutions remain live. No change on the register this week.
- Whether Jackson goes up — petition status still unconfirmed.
- A final judgment in Sri Shirdi — fee-ruling status still unconfirmed.
- Rebuilding the alert searches. The re:SearchTX saved searches still need re-scoping, and the docket-alert export no longer yields scheduled settings to this publication’s pipeline.
- Benjamin Edwards’s monthly Nevada and Texas reincorporation list for August had not posted as of August 29; expected in the first week of September and to be cross-checked against the tracker cohort on arrival.