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 baseline) 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, once elected, the required holding 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 threshold.
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.