Legal & Litigation Risk.

SECTION 1The state-by-state doctrinal landscape

Ten doctrines map the operative gap between Delaware on one side and Texas and Nevada on the other. The cells below state where each state stands today — well-developed body of law, partial coverage, statutorily codified default, narrowed scope, unsettled, or absent / foreclosed. Color encodes doctrinal maturity, not management-friendliness: an “absent” cell can be plaintiff-favorable (no codified BJR floor) or defense-favorable (no Caremark obligation), depending on the claim type.

Figure 1

Where each state stands today. Color encodes doctrinal maturity, not management-friendliness.

Sources: DGCL § 102(b)(7); DGCL § 144 (post-SB 21); DGCL § 220; DGCL § 262; DGCL § 327; TBOC § 2.115; TBOC § 7.001; TBOC ch. 21; NRS § 78.138; NRS § 92A.380; Guzman v. Johnson, 483 P.3d 531 (Nev. 2021); Boilermakers Local 154 Ret. Fund v. Chevron Corp., 73 A.3d 934 (Del. Ch. 2013).

How to read this map

Caremark and Marchand. Delaware’s officer-oversight doctrine, anchored in Marchand v. Barnhill¹ and extended to corporate officers in In re McDonald’s Corp. Stockholder Derivative Litigation², has no Texas or Nevada analog — not because the duty has been displaced, but because no published Texas or Nevada appellate opinion has yet articulated equivalent mission-critical oversight standards. Whether TBOC § 21.419 or NRS § 78.138(7)’s codified BJR survives a McDonald’s-style officer-Caremark pleading on the equivalent facts is the first-generation post-reincorporation litigation question. Caveat: no Texas or Nevada appellate decision has resolved it.

MFW and controller cleansing. Delaware’s Kahn v. M&F Worldwide Corp.³ framework cleanses a controller transaction from entire-fairness review to business judgment only on ab initio conditioning of (i) a fully empowered, well-functioning special committee and (ii) approval by an informed, uncoerced majority of the minority. SB 21 (eff. March 25, 2025)⁴ added DGCL § 144, codifying statutory safe-harbor procedures for both director-conflicted and controller-conflicted transactions and modifying (without eliminating) the MFW judicial protocol. Texas is unsettled — no statutory analog, no published MFW-equivalent procedural protocol, no Business Court appellate decision yet. Nevada is more emphatic: Guzman v. Johnson⁵ and Chur v. Eighth Judicial District Court⁶ together hold that NRS § 78.138(7) is the sole avenue to hold individual directors and officers liable for damages, and that inherent-fairness analysis cannot be invoked to rebut the statutory BJR even in interested-fiduciary transactions. Counsel should not assume MFW maps automatically to either jurisdiction.

Revlon and Unocal enhanced scrutiny. Delaware’s sale-of-control enhanced scrutiny (Revlon⁷) and intermediate-scrutiny defensive-measures review (Unocal⁸) have no published Texas or Nevada equivalents. Texas’s TBOC § 21.401(b)⁹ — authorizing director consideration of long-term interests and continued independence — sits in roughly the same doctrinal neighborhood for defensive measures but covers far less ground. The structural absence is itself a litigation-risk fact: defense counsel cannot count on a developed enhanced-scrutiny gloss in either state.

Books and records. Pre-2025, Delaware Chancery built an expansive § 220 practice culminating in Lebanon County Employees’ Retirement Fund v. AmerisourceBergen Corp.¹⁰, which extended inspection reach to corporate emails when reasonably necessary. SB 21 substantially rewrote DGCL § 220 — defining enumerated categories of inspectable records and imposing a “compelling need” / clear-and-convincing-evidence threshold for additional specific records. TBOC § 21.218, as amended by SB 29, excludes emails, text messages, and similar electronic communications unless they effectuate corporate action, and treats certain adversarial / derivative-linked demands as improper purposes for covered corporations. The practical post-2025 gap between § 220 and § 21.218 is materially smaller than the pre-2025 gap.

Appraisal access. DGCL § 262 grants broad appraisal access, with DFC Global Corp. v. Muirfield Value Partners, L.P.¹¹ and Verition Partners Master Fund Ltd. v. Aruba Networks, Inc.¹² pushing toward deal-price-with-synergy-adjustments. Nevada’s NRS § 92A.380 applies a broad market-out exception for shares listed on a national exchange where consideration is publicly traded equity. Texas appraisal is transaction-form dependent. Before advising any appraisal posture, counsel must confirm the actual transaction structure — § 266 conversion, § 251 merger, § 253 short-form merger, or comparable mechanism.

Derivative-suit standing. DGCL § 327 imposes contemporaneous ownership but no minimum stake. TBOC § 21.552(a)(3), as amended by SB 29¹³, permits a covered Texas corporation to adopt an ownership threshold not exceeding 3% of outstanding shares below which a stockholder may not commence or maintain a derivative proceeding — dual axis: the 3% number is a ceiling on what the corporation may elect and a floor on what the shareholder must satisfy. The threshold is elective; a corporation that has not adopted it remains subject to the pre-existing standing rule. Nevada imposes no statutory derivative ownership floor.

Forum-selection enforcement. Delaware enforces internal-affairs forum-selection clauses under Boilermakers Local 154 Retirement Fund v. Chevron Corp.¹⁴. Texas’s TBOC § 2.115 expressly authorizes domestic-entity certificates and bylaws to designate Texas state or federal courts as the exclusive forum for internal-entity claims. Nevada lower courts have generally enforced exclusive-forum bylaws, though the Nevada Supreme Court has not adopted a Boilermakers-equivalent framework on the record.

Codified business-judgment rule. Delaware retains the common-law BJR; Texas and Nevada have codified statutory variants. TBOC § 21.419(c) applies to corporations whose voting shares are listed on a national securities exchange and to corporations that affirmatively elect coverage. NRS § 78.138(3) and (7) apply by statutory default unless the articles opt out.

Exculpation reach. DGCL § 102(b)(7) permits exculpation of directors (and, after the 2022 amendment, certain officers) for monetary damages absent breach of loyalty, bad-faith conduct, intentional misconduct, knowing violations of law, or improper personal-benefit transactions. TBOC § 7.001 tracks § 102(b)(7) closely. Nevada’s default architecture under NRS § 78.138 is broader than either: a director or officer is not individually liable for damages absent both a fiduciary breach and intentional misconduct, fraud, or a knowing violation of law — unless the articles affirmatively opt out.

SECTION 2The reincorporation-litigation playbook

Three lanes by accrual timing — pre-vote, transition window, post-effective. Each node below names a plaintiff lever, the defense response, and the operative statute or case. The lanes are not silos: a single claim may shift between them as conversion mechanics unfold.

Figure 2

Three lanes by accrual timing. Each node names the plaintiff lever, the defense response, and the operative statute or case.

Sources: TBOC § 2.115; TBOC §§ 21.418, 21.419, 21.552(a)(3), 21.553; NRS § 78.138(7); DGCL §§ 144, 220, 228, 251, 253, 262, 266 (post-SB 21); Maffei v. Palkon, 2025 WL 384054 (Del. Feb. 4, 2025); Gusinsky v. Reynolds, No. 3:25-cv-01816-K (N.D. Tex. Mar. 17, 2026); In re McDonald’s Corp. S’holder Deriv. Litig., 2023 WL 387292 (Del. Ch. Jan. 26, 2023).

How the lanes operate in a live matter

Pre-vote. The first 90 days before the reincorporation vote are when discovery records get built, the most consequential disclosure adequacy challenges land, and the doctrinal injunction theory either survives or does not. A pre-vote DGCL § 220 demand is now narrower than it was pre-SB 21 — the requesting stockholder must work within the enumerated categories and meet the “compelling need” standard for anything beyond — but books-and-records remains the single best mechanism for developing a pleading record before merits litigation. Disclosure-adequacy MTDs target Schedule 14A item 14 (mergers and acquisitions) and item 19 (vote required); under Section 14(a) of the Exchange Act and Rule 14a-9, materially misleading or omissive descriptions of derivative-suit access, books-and-records changes, exculpation expansion, or controller economics are independently actionable. The pre-vote injunction motion is where Maffei v. Palkon now bites: the SCOD en banc reversal in February 2025 substantially narrowed the controller-benefit theory for clear-day reincorporations. MFW cleansing remains the surest defense path where a controller is present and the transaction was conditioned ab initio on special committee and minority approval.

Transition window. The 30-day window after the effective date is procedurally distinctive. Appraisal noticing under DGCL § 262 — or whatever the destination state’s analog turns out to be — is form-dependent: a § 266 conversion, a § 251 merger, and a § 253 short-form merger all imply different appraisal architectures and demand timelines. Vote-certification challenges turn on the tabulator’s and inspector’s reports filed with the effective-date Form 8-K Item 5.07; under DGCL § 228, written-consent approval has its own record-date and notice mechanics.

Post-effective. The post-effective lane is where most plaintiff-side innovation happens. Forum-bylaw enforcement and the federal-claims escape valve are litigated under Salzberg v. Sciabacucchi¹⁵ (Securities Act federal-forum provisions valid as a matter of Delaware corporate law) and Lee v. Fisher¹⁶ (Ninth Circuit treatment of derivative-suit forum clauses under the Exchange Act); the analysis is claim-specific. The derivative-standing test is the live battleground for TBOC § 21.552(a)(3): Gusinsky v. Reynolds¹⁷ — the first federal-court application — dismissed a 100-share plaintiff under Southwest Airlines’s bylaw-adopted 3% threshold, but did not reach the dormant Commerce Clause or Texas Constitution challenges. The codified BJR MTD posture differs across the two destination states: Texas’s § 21.419(c) creates a presumption rebuttable by particularized pleading; Nevada’s § 78.138(7) imposes the higher two-prong damages-liability standard (fiduciary breach plus intentional misconduct, fraud, or knowing violation of law) confirmed in Guzman v. Johnson. The officer-Caremark question under codified BJR remains open in both states. Finally, internal-affairs doctrine and dormant Commerce Clause challenges sit at the constitutional ceiling — Edgar v. MITE Corp.¹⁸ and CTS Corp. v. Dynamics Corp. of America¹⁹ — and remain unadjudicated against SB 29.

SECTION 3SB 29 in practitioner terms — elective, default, judicially open

The single most-mistaken step in TBOC analysis is failing to map each governance question to the correct category. Many SB 29 reforms are elective — they require a charter or bylaw amendment to apply. A few are statutory defaults — they apply automatically (often to listed corporations) unless the entity opts out. The rest are judicial doctrine — territory where Texas appellate courts have not yet developed a record. Predict outcomes only after fixing the category.

Figure 3

Mapping each governance question to the right category before predicting outcomes.

Sources: SB 29, 89th Leg., R.S. (Tex. 2025), eff. May 14, 2025; SB 1057, 89th Leg., R.S. (Tex. 2025); H.B. 19, 88th Leg., R.S. (Tex. 2023); H.B. 40, 89th Leg., R.S. (Tex. 2025); Tex. Bus. Orgs. Code ch. 21; ch. 2; ch. 7; Tex. Gov’t Code ch. 25A.

Three categories, three operative rules

Elective. The 3% derivative-suit threshold under TBOC § 21.552(a)(3) is the most-cited example of an elective provision. The corporation must adopt the threshold in its certificate of formation or bylaws — not just qualify as “covered” (listed on a national exchange, or with 500+ shareholders and an opt-in election). Once adopted, the same number is a ceiling on what the corporation may elect (cap of 3%) and a floor on what the shareholder must satisfy (no derivative complaint absent the elected stake). The shareholder-proposal threshold under TBOC § 21.373 — added by SB 1057 — uses a disjunctive test (3% OR $1M) and requires solicitation of 67% of voting power. Exclusive Texas forum under § 2.115 and jury-trial waiver under § 2.116 are similarly elective — both require governing-document adoption.

Default. The codified BJR at TBOC § 21.419(c) applies automatically to corporations whose voting shares are listed on a national securities exchange — coverage is triggered by listed status, not by an election. The universal-demand requirement at § 21.553 applies broadly: pre-suit demand on the board is not excused for futility. TBOC § 7.001 permits director exculpation (and, after recent amendments, officer exculpation by certificate amendment). TBOC § 21.401(b) permits boards to consider long-term interests and continued corporate independence. Tex. Gov’t Code ch. 25A establishes Business Court jurisdiction at the $5 million amount-in-controversy threshold for the governance lane.

Judicial doctrine. Several categories are doctrinally open. Whether Caremark and Marchand officer oversight survives under codified Texas BJR is the first generation’s headline question. Whether Revlon / Unocal enhanced scrutiny has any Texas analog beyond § 21.401(b)’s partial proxy is unresolved. Whether MFW cleansing equivalence applies in Texas — or whether Texas equity practice gap-fills a controller-transaction procedural protocol — remains an open litigation question. Whether § 21.419 displaces entire-fairness analysis at the motion-to-dismiss stage in controller-affiliated transactions is the most consequential of these doctrinal questions: no Texas appellate decision has resolved it. Finally, whether Edgar v. MITE Corp. and CTS Corp. v. Dynamics Corp. of America limit Texas’s authority to apply § 21.552 against extraterritorial plaintiffs has not been adjudicated. Plaintiff counsel for out-of-state shareholders should brief the dormant Commerce Clause defense early.

SECTION 4Maffei v. Palkon decoded — still available, foreclosed

The Delaware Supreme Court, sitting en banc, reversed Vice Chancellor Laster’s Chancery decision and held that the business-judgment rule — not entire fairness, not MFW — applies to a board’s clear-day decision to reincorporate, even where a controller stands to benefit from reduced future fiduciary exposure. The reversal is narrower than the headline reads: disclosure and process challenges remain available, and entire fairness remains available where the record shows pre-reincorporation breach groundwork. The matrix below sorts what Maffei keeps open from what it forecloses.

Figure 4

Del. SCOD en banc, Feb. 4, 2025 (Valihura, J., for the Court), reversing Palkon v. Maffei, 311 A.3d 255 (Del. Ch. 2024).

Sources: Maffei v. Palkon, No. 125, 2024, 2025 WL 384054 (Del. Feb. 4, 2025) (en banc) (Valihura, J.); Palkon v. Maffei, 311 A.3d 255 (Del. Ch. 2024).

How Maffei narrowed plaintiff theories without closing them

The clearest way to read Maffei v. Palkon is that the SCOD en banc reversed a specific Chancery holding — that the future possibility of reduced fiduciary exposure under Nevada law constituted a non-ratable controller benefit triggering entire-fairness review — without disturbing the broader doctrinal architecture. Three implications matter for counsel triaging a reincorporation challenge:

First, the “clear-day” line. The Court’s rationale is that a board’s decision to reincorporate, made when no specific transaction or fiduciary breach is pending, falls within business-judgment review even where the controller might prospectively benefit. The reversal is keyed to the absence of articulable pre-vote breach groundwork. Where a controller has, by contrast, taken material steps in furtherance of a fiduciary breach before the reincorporation vote, entire fairness remains the correct standard.

Second, disclosure and process attacks are not foreclosed. Schedule 14A item 14 and item 19 disclosure claims survive in full; Section 14(a) and Rule 14a-9 federal-law claims survive in full. Pre-vote process challenges — board independence, advisor conflicts, soliciting-stockholder coercion, bylaw-amendment process — all remain available. Plaintiff counsel who anchor a challenge in process or disclosure (rather than in the controller-benefit theory the Court rejected) face no Maffei bar.

Third, dual-class supervoting cases are open. The Coinbase reincorporation — effective December 15, 2025, approved by an approximately 78.40% voting bloc assembled from 20:1 Class B supervoting shares ²⁰ — presents a post-effective theory Maffei did not adjudicate: that a dual-class transfer of value through reincorporation is itself a non-ratable benefit because the economic stake supporting the controlling vote is a minority of total shares. The doctrinal question is whether the Maffei standard, applied to a clear-day Nevada conversion of a single-class company, extends to a dual-class Texas conversion approved by written consent under DGCL § 228. No published Delaware-court decision has yet adjudicated the question.

SECTION 5The litigation-risk migration matrix

Risk migrates; it does not disappear. The matrix below maps eight risk vectors from the Delaware baseline to the Texas / Nevada change, names the counsel action each requires, and rates the risk shift. The hardest cases — fiduciary standard, derivative access, and controller transactions — all carry High shifts. Forum and federal-claims posture shift Low, because Salzberg and the federal anti-waiver rules preserve a federal-securities lane that state-law forum clauses cannot reach.

Figure 5

Risk migrates; it does not disappear. Counsel action and risk-shift rating are first-order checks at the start of every engagement.

Sources: TBOC §§ 2.115, 2.116; § 7.001; §§ 21.218, 21.401, 21.419, 21.552, 21.553; NRS §§ 78.138, 78.7502; NRS § 92A.380; DGCL §§ 102(b)(7), 144 (post-SB 21), 220, 251, 262, 266, 327; Salzberg v. Sciabacucchi, 227 A.3d 102 (Del. 2020).

Reading the shift column

High shifts. The fiduciary-standard, derivative-access, and controller-transaction vectors all carry High shifts because the statutory regime is materially different and Texas / Nevada appellate authority is thin. Counsel cannot rely on Delaware reasoning to predict outcomes on the same facts in either destination state. The codified BJR (TBOC § 21.419(c) for listed corporations; NRS § 78.138(3), (7) by default) restructures the pleading-stage analysis; the elective § 21.552(a)(3) threshold restructures derivative standing where adopted; and the absence of an MFW-equivalent procedural cleansing protocol restructures controller-transaction defense.

Moderate shifts. Forum, books-and-records, and appraisal shift Moderate. The Business Court is statutorily new and equity remedies are governed by ordinary Texas equity practice rather than Chancery’s specialized procedures; § 21.218 narrows inspection of electronic records but the post-SB-21 DGCL § 220 rewrite shrank the gap meaningfully; appraisal is transaction-form dependent and counsel must confirm structure before advising. None of these requires an entirely new analytical framework.

Low shifts. Federal-claims forum and D&O insurance shift Low. Salzberg v. Sciabacucchi validates Securities Act federal-forum provisions within their internal-affairs scope; federal anti-waiver rules under Securities Act § 28 and Exchange Act § 27 protect federal jurisdiction for federal-securities claims, and state-law forum bylaws do not override them. On D&O insurance, the published market data does not yet support a general claim of systematic TX/NV repricing — pricing differentials may exist at the policy level, but neither Aon, Marsh, Willis Towers Watson, nor Woodruff Sawyer has published a sector-wide repricing dataset. Counsel should review the specific policy, not assume the market.

SECTION 6Tornetta procedural arc — April 2018 to December 2025

Seven years. Two captions. Two trial-court judges. One Supreme Court reversal that didn’t reach liability. The Tornetta arc is the catalyst case for the post-2024 Texas reincorporation cohort and the doctrinal arc most likely to shape the next decade of officer-compensation litigation. The procedural complexity matters: the 2018 MTD denial (Slights, V.C.) sits under one docket number (2018-0408-JRS), the 2024 post-trial rescission (McCormick, C.) under another (2018-0408-KSJM), and the December 2025 SCOD reversal travels under the consolidated caption In re Tesla, Inc. Derivative Litigation. Counsel reading the case file must hold all three lines in view.

Figure 6

Seven years. Two captions. Two trial-court judges. One Supreme Court reversal that didn’t reach liability.

Sources: Tornetta v. Musk, 250 A.3d 793 (Del. Ch. 2019) (Slights, V.C.); Tornetta v. Musk, 310 A.3d 430 (Del. Ch. 2024) (McCormick, C.); In re Tesla, Inc. Deriv. Litig., 2025 WL 3689114 (Del. Dec. 19, 2025) (en banc, per curiam); Tesla’s redomestication is documented in Tesla Form 8-K (accession 0001104659-24-071439) and Q2 2024 10-Q.

Doctrinal posture for Texas-domiciled controlled issuers

Counsel advising controlled Texas-domiciled issuers should not treat the December 19, 2025 SCOD reversal as a wholesale repudiation of the Chancery liability framework. The reversal is on remedy grounds and the per curiam explicitly notes “varying views” among the Justices on liability. Equally, counsel should not treat the Chancery liability holding as appellate-endorsed precedent — it stands as a trial-court entire-fairness analysis that the Supreme Court reviewed but did not reach. The doctrinally open question is whether either holding carries weight under codified Texas BJR (TBOC § 21.419) on the same facts in a Texas Business Court. As of the date of this page, no Texas appellate decision has resolved the question.

SECTION 7Gusinsky v. Reynolds and plaintiff strategy

Gusinsky v. Reynolds¹⁷, No. 3:25-cv-01816-K (N.D. Tex. Mar. 17, 2026) (Kinkeade, J.), is the first identified federal-court decision enforcing an SB 29 ownership-threshold bylaw. A 100-share derivative plaintiff sued Southwest Airlines’s board over the airline’s end-of-bag-fee policy decision. Southwest had adopted a 3%-threshold bylaw under TBOC § 21.552(a)(3); the court applied the bylaw and dismissed with prejudice. Counsel advising plaintiff strategy in any Texas-incorporated covered corporation should treat Gusinsky as the floor — the court rejected fiduciary-entrenchment, Texas Constitution, and Texas contract-law theories at the motion-to-dismiss stage — while preserving the unadjudicated constitutional defenses.

What the court reached

• Dual-axis mechanism validated. The court accepted that the 3% number functions simultaneously as the ceiling on what Southwest could elect and the floor that the shareholder must satisfy.
• Bylaw enforceability confirmed. Southwest’s bylaw was adopted two days after SB 29 took effect; the court treated the bylaw as validly adopted and operative against the filed derivative complaint.
• Pre-suit demand vs. derivative complaint distinguished. The court clarified that a pre-suit demand letter does not, by itself, “institute” a derivative proceeding for purposes of § 21.552 — only the filed complaint does.
• Aggregation question deferred. Whether a 100-share plaintiff may aggregate with other holders to reach the bylaw-adopted threshold was not squarely presented; aggregation mechanics remain open for future plaintiffs.

What the court did not reach — and what plaintiff strategy should preserve

The court declined to reach the plaintiff’s constitutional defenses. Three theories remain open for cohort-plaintiff litigation:

• Dormant Commerce Clause. Plaintiffs whose principal place of business is outside Texas can argue that SB 29’s effect on out-of-state derivative plaintiffs exceeds the constitutional limit articulated in Edgar v. MITE Corp. The argument is keyed to whether the burden on interstate commerce in derivative-litigation access is excessive relative to the local benefit.
• Internal-affairs scope. Under CTS Corp. v. Dynamics Corp. of America, a state may regulate the internal affairs of corporations it charters. The doctrinal question for out-of-state plaintiffs is whether § 21.552’s extraterritorial reach against an out-of-state plaintiff in a Texas-incorporated but headquartered-outside-Texas company is “internal” in the CTS sense.
• Texas Constitution Article I, § 16. The plaintiff’s state-constitutional retroactivity argument under Tex. Const. art. I, § 16 was not reached. The argument would be strongest where the plaintiff acquired shares before the bylaw was adopted.

Plaintiffs’ counsel structuring the next federal-court challenge to a 3%-threshold bylaw should brief all three early. Gusinsky did not foreclose any of them.

SECTION 8D&O insurance, FFP scope, and the federal-securities exception

Three insurance and disclosure points deserve their own treatment because each is routinely overgeneralized.

D&O insurance

Counsel should review D&O policies pre- and post-reincorporation for changes in retention, defense cost coverage, choice-of-law clauses, state-law jurisdiction language, and exclusions for breach-of-loyalty claims. Whether the broader D&O market has systematically differentiated pricing for TX/NV-domiciled issuers is a question requiring market-data sources (Aon, Marsh, Willis Towers Watson, Woodruff Sawyer); this page does not assert a market-wide repricing absent that data. Side A coverage and Side B / Side C tower review should be performed at policy renewal, not assumed unchanged.

Federal-forum-provision scope

Salzberg v. Sciabacucchi held that Delaware corporations may adopt charter provisions designating federal court as the exclusive forum for Securities Act § 11 claims — an internal-affairs proposition. Lee v. Fisher addressed the Ninth Circuit’s treatment of state-court forum clauses applied to Exchange Act § 14(a) derivative claims. The two cases address different procedural postures; the operative analysis is claim-specific. Counsel should not assume that a Texas or Nevada exclusive-forum bylaw covers Exchange Act derivative claims, Securities Act claims, or both — the scope of each must be reviewed against the bylaw’s text and the specific claim’s federal-jurisdictional posture.

The federal-securities exception

Federal-securities claims do not disappear at the state border. Securities Exchange Act § 10(b) and Rule 10b-5 remain available for transactional fraud claims; Section 14(a) and Rule 14a-9 remain available for proxy-disclosure inadequacy; Securities Act § 11 remains available where registration-statement disclosures are materially misleading. The federal anti-waiver rules at Securities Act § 28 and Exchange Act § 27 protect federal jurisdiction for federal-securities claims, and state-law internal-affairs forum clauses do not override them.

SECTION 9What we do not yet know

Five questions are doctrinally open. Each will be tested in the first generation of post-reincorporation litigation; counsel should track the Texas Business Court docket and the Nevada Supreme Court’s reach in NRS § 78.138 cases for resolution.

1. Does TBOC § 21.419 displace entire-fairness review at the motion-to-dismiss stage in controller-affiliated transactions? Or does common-law gap-filling under Texas equity practice preserve it? No Texas appellate decision has resolved this question as of the date of this page.
2. Does Nevada’s NRS § 78.138(7) survive a Caremark-equivalent oversight challenge? Or do federal-securities-law oversight duties (Exchange Act § 10A; Sarbanes-Oxley § 404) operate as a backstop? The Nevada Supreme Court has not directly resolved the interaction.
3. Are forum-selection clauses adopted contemporaneously with reincorporation enforceable against pre-reincorporation claims? Or do such claims travel with the Delaware forum-selection bylaw in effect at accrual? The accrual-date analysis is contested.
4. Does federal preemption — under Securities Act § 28 (savings clause), Exchange Act § 27 (federal-court jurisdiction), or the federal-forum-provision doctrine of Salzberg — limit TX/NV state-law forum-selection bylaws as applied to federal-securities claims? Federal-jurisdictional preservation is the operative principle; the application is claim-specific.
5. Does the internal-affairs doctrine as articulated in Edgar v. MITE and CTS Corp. limit Texas’s authority to apply TBOC § 21.552 to companies headquartered outside Texas but reincorporated in Texas? And does the dormant Commerce Clause provide a separate constraint? Neither defense has been adjudicated against SB 29; Gusinsky did not reach them.

SECTION 10Legal & Litigation across SMU CGI

This page is the practitioner-facing face of a five-part research program. Each sibling property covers a different audience or methodological lane. The cross-links below are deep links to the substantive page or dashboard, not landing pages.

Primary sources

Bluebook 21st-edition citations with active primary-source hyperlinks. Practitioner blog commentary appears only as the secondary anchor where the doctrinal claim itself requires citing it, and only alongside the primary source.

1. Marchand v. Barnhill, 212 A.3d 805 (Del. 2019), courts.delaware.gov/Opinions/Download.aspx?id=291200. Revived the Caremark oversight doctrine and articulated the “mission-critical” risk-monitoring standard for boards. The doctrinal floor for all officer-Caremark questions on the Texas / Nevada migration. ↑
2. In re McDonald’s Corp. S’holder Deriv. Litig., 2023 WL 387292 (Del. Ch. Jan. 26, 2023) (Laster, V.C.), courts.delaware.gov/Opinions/Download.aspx?id=343600. Extended the Caremark oversight duty to corporate officers commensurate with their areas of responsibility. The key authority for any officer-Caremark pleading post-reincorporation. ↑
3. Kahn v. M&F Worldwide Corp., 88 A.3d 635 (Del. 2014), courts.delaware.gov/Opinions/Download.aspx?id=203160. The MFW controller-cleansing framework: ab initio conditioning on (i) a fully empowered, well-functioning special committee, and (ii) approval by an informed, uncoerced majority of the minority shifts review from entire fairness to business judgment. ↑
4. Delaware Senate Bill 21, 153d Gen. Assemb. (Del. 2025) (eff. Mar. 25, 2025), legis.delaware.gov/SessionLaws/Chapter?id=110100 (adding DGCL § 144 and amending DGCL § 220). The 2025 Delaware reform bill that codified safe-harbor procedures for director-conflicted and controller-conflicted transactions, narrowed § 220 inspection reach, and reset the doctrinal baseline against which Texas / Nevada migrations are now measured. ↑
5. Guzman v. Johnson, 483 P.3d 531 (Nev. 2021), law.justia.com/cases/nevada/supreme-court/2021/79989.html. The Nevada Supreme Court’s controlling authority for the proposition that NRS § 78.138(7) is the sole avenue to hold individual directors and officers liable for damages, even in interested-fiduciary transactions. Forecloses the Shoen v. SAC inherent-fairness avenue. ↑
6. Chur v. Eighth Jud. Dist. Ct., 458 P.3d 336 (Nev. 2020), law.justia.com/cases/nevada/supreme-court/2020/77419.html. Companion ruling to Guzman: the Nevada statutory liability shield governs even where the alleged fiduciary breach involves self-interested conduct. Counsel cannot rebut the statutory BJR by invoking common-law inherent fairness. ↑
7. Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1986), law.justia.com/cases/delaware/supreme-court/1986/506-a-2d-173-5.html. Delaware’s enhanced-scrutiny standard for board conduct in change-of-control transactions. Has no published Texas or Nevada analog after the 2025 codification cycle. ↑
8. Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946 (Del. 1985), law.justia.com/cases/delaware/supreme-court/1985/493-a-2d-946-5.html. Delaware’s intermediate-scrutiny standard for board defensive measures. The closest Texas analog is TBOC § 21.401(b), which authorizes consideration of long-term interests and continued independence; the coverage is materially narrower. ↑
9. Tex. Bus. Orgs. Code Ann. § 21.401(b) (West 2025), statutes.capitol.texas.gov/Docs/BO/htm/BO.21.htm#21.401. Permits Texas corporation boards to consider long-term interests of the corporation and the desirability of maintaining continued independence in making management decisions. Partial proxy for Revlon / Unocal — not a substitute. ↑
10. Lebanon Cnty. Emps.’ Ret. Fund v. AmerisourceBergen Corp., 243 A.3d 417 (Del. 2020), law.justia.com/cases/delaware/supreme-court/2020/253-2020.html. Pre-SB-21 Delaware Supreme Court authority extending § 220 inspection to corporate emails when reasonably necessary for the demand’s purpose. Now substantially modified by the post-SB-21 rewrite of § 220. ↑
11. DFC Glob. Corp. v. Muirfield Value Partners, L.P., 172 A.3d 346 (Del. 2017), courts.delaware.gov/Opinions/Download.aspx?id=260990. Delaware Supreme Court’s anchor authority on appraisal-arbitrage practice; pushed deal-price-with-synergy-adjustments as the operative methodology. ↑
12. Verition Partners Master Fund Ltd. v. Aruba Networks, Inc., 210 A.3d 128 (Del. 2019), law.justia.com/cases/delaware/supreme-court/2019/368-2018.html. Reinforced the deal-price-with-synergy methodology in appraisal. Nevada has not generated a comparable appraisal-litigation record. ↑
13. Texas Senate Bill 29, 89th Leg., R.S. (Tex. 2025) (eff. May 14, 2025), capitol.texas.gov/tlodocs/89R/billtext/html/SB00029F.HTM; bill history at capitol.texas.gov/BillLookup/History.aspx?LegSess=89R&Bill=SB29. Adds TBOC § 1.056 (Texas-first source-of-law rule), § 2.115 (exclusive Texas forum), § 2.116 (jury-trial waiver), § 21.419 (codified BJR for listed and opt-in corps), § 21.552(a)(3) (3% derivative threshold), and amends §§ 21.218, 21.553, and 7.001. ↑
14. Boilermakers Local 154 Ret. Fund v. Chevron Corp., 73 A.3d 934 (Del. Ch. 2013) (Strine, C.), courts.delaware.gov/Opinions/Download.aspx?id=187280. The Delaware authority validating internal-affairs forum-selection bylaws against statutory challenge. The doctrinal anchor for TBOC § 2.115’s statutory grant. ↑
15. Salzberg v. Sciabacucchi, 227 A.3d 102 (Del. 2020), courts.delaware.gov/Opinions/Download.aspx?id=303400. Held that Delaware corporations may adopt charter provisions designating federal court as the exclusive forum for Securities Act § 11 claims. Anchor for federal-forum-provision analysis; does not control Exchange Act derivative claims, which are claim-specific. ↑
16. Lee v. Fisher, 70 F.4th 1129 (9th Cir. 2023) (en banc), cdn.ca9.uscourts.gov/datastore/opinions/2023/06/01/21-15923.pdf. Ninth Circuit treatment of state-court forum-selection bylaws applied to Exchange Act § 14(a) derivative claims. The procedural analysis differs from Salzberg and remains the operative federal-circuit authority for derivative-suit forum analysis. ↑
17. Gusinsky v. Reynolds, No. 3:25-cv-01816-K (N.D. Tex. Mar. 17, 2026) (Kinkeade, J.) (order granting motion to dismiss). The first identified federal-court decision enforcing an SB 29 ownership-threshold bylaw under TBOC § 21.552(a)(3). Dismissed with prejudice a 100-share derivative complaint against Southwest Airlines. Did not reach the plaintiff’s dormant Commerce Clause, internal-affairs scope, or Texas Constitution defenses. Practitioner-alert tracking via Gibson Dunn, Foley & Lardner, and Hunton Andrews Kurth (practitioner alerts cited for tracking only; not as primary URL targets). ↑ ↑
18. Edgar v. MITE Corp., 457 U.S. 624 (1982), supreme.justia.com/cases/federal/us/457/624/. Plurality opinion invalidating Illinois’s antitakeover statute as an impermissible burden on interstate commerce. The constitutional ceiling on extraterritorial reach of state corporate-law statutes. ↑
19. CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69 (1987), supreme.justia.com/cases/federal/us/481/69/. Upheld an Indiana antitakeover statute as a permissible regulation of internal corporate affairs. Together with MITE, defines the internal-affairs / dormant Commerce Clause boundary; both are unadjudicated against SB 29. ↑
20. Coinbase Global, Inc., Preliminary Information Statement on Schedule 14C, filed Nov. 12, 2025 (accession 0001679788-25-000218), sec.gov/cgi-bin/browse-edgar?action=getcompany&CIK=0001679788&type=PRE+14C; Coinbase Form 8-K filed Dec. 15, 2025 (accession 0001679788-25-000247), sec.gov/Archives/edgar/data/1679788/0001679788-25-000247-index.html. Documents the December 15, 2025 effective-date and the written-consent approval mechanics under DGCL § 228 by a Class-B supervoting bloc led by founders Brian Armstrong and Fred Ehrsam through personal stockholdings and affiliated trusts. ↑
21. Salzberg v. Sciabacucchi, 227 A.3d 102 (Del. 2020) (federal-forum-provision validity for Securities Act § 11 claims); Securities Act § 28 (anti-waiver), 15 U.S.C. § 77z-3; Exchange Act § 27 (federal-court jurisdiction), 15 U.S.C. § 78aa. The three statutory and case authorities most often relied upon for the proposition that state-law internal-affairs forum bylaws do not displace federal jurisdiction for federal-securities claims.
22. Texas H.B. 19, 88th Leg., R.S. (Tex. 2023), capitol.texas.gov/tlodocs/88R/billtext/html/HB00019F.HTM (codified at Tex. Gov’t Code Ann. ch. 25A); Texas S.B. 1045, 88th Leg., R.S. (Tex. 2023), capitol.texas.gov/tlodocs/88R/billtext/html/SB01045F.HTM (creating the Fifteenth Court of Appeals); Texas H.B. 40, 89th Leg., R.S. (Tex. 2025), capitol.texas.gov/tlodocs/89R/billtext/html/HB00040F.HTM. The institutional architecture: H.B. 19 establishes the Texas Business Court; S.B. 1045 establishes the Fifteenth Court of Appeals; H.B. 40 expands the Business Court (lowered amount-in-controversy threshold to $5M, joined-party aggregation, jurisdictional expansion, sunset removal).
23. Tex. Bus. Orgs. Code Ann. § 21.552(a)(3) (West 2025), statutes.capitol.texas.gov/Docs/BO/htm/BO.21.htm#21.552; Tex. Bus. Orgs. Code Ann. § 21.553 (West 2025), statutes.capitol.texas.gov/Docs/BO/htm/BO.21.htm#21.553. The derivative-action architecture as amended by SB 29: the elective ≤ 3% ownership-threshold mechanism (§ 21.552(a)(3)) plus universal demand (§ 21.553). Adoption status must be confirmed in the corporation’s certificate or bylaws.
24. Tex. Bus. Orgs. Code Ann. § 21.419 (West 2025), statutes.capitol.texas.gov/Docs/BO/htm/BO.21.htm#21.419. Codifies the business-judgment rule for covered corporations — corporations whose voting shares are listed on a national securities exchange (default coverage) and corporations that affirmatively elect coverage (opt-in). Director and officer presumed to act in good faith, on an informed basis, in furtherance of the corporation’s interests, and in obedience to law; rebuttal requires particularized facts pleaded with specificity.
25. Nev. Rev. Stat. § 78.138(3), (7) (2025), leg.state.nv.us/nrs/nrs-078.html#NRS078Sec138 (official Nevada Legislature target); parallel: law.justia.com/codes/nevada/chapter-78/statute-78-138/. Nevada’s statutory liability shield. A director or officer is not individually liable for damages absent (i) rebuttal of the statutory presumption that the actor acted on an informed basis, in good faith, and with a view to the corporation’s interests, and (ii) proof that the act both constituted a fiduciary breach and involved intentional misconduct, fraud, or a knowing violation of law.