Nevada Assembly Bill 239: jury waivers, fiduciary duties, and a codified controller framework.

Nevada's competitive proposition to issuers reconsidering Delaware has long centered on its statutory regime being more defendant-favorable than Delaware common-law fiduciary doctrine. AB 239 sharpens that proposition along three margins. First, the § 78.046 jury-trial-waiver authority gives Nevada-incorporated corporations a clear statutory path to bench trials for internal-actions fiduciary claims — a procedural feature attractive to deal planners concerned about jury unpredictability in business disputes. Second, the § 78.138 amendments tighten the pleading and evidentiary standards for D&O liability. Third, the codified controlling-stockholder framework narrows the controller's statutory duty relative to the broader common-law controller doctrine that has developed in Delaware Chancery, particularly post-Tornetta.

The structural choice to bundle the three reforms into a single bill reflects Nevada's compressed legislative calendar (the Nevada legislature meets only in odd-numbered years for 120-day sessions) and the legislative-coalition dynamics of moving multiple corporate-law reforms simultaneously. The post-enactment doctrinal development will depend on how Nevada courts (the Nevada Supreme Court hears business-court appeals under the existing district-court structure) interpret the new codified standards.

Comparison to the SB 21 and SB 29 architectures

AB 239's architectural choice differs from both Delaware SB 21 and Texas SB 29 in instructive ways. Where Delaware SB 21 retains entire-fairness review outside its statutory safe harbors, Nevada's amended § 78.138 framework operates as the dominant statutory standard, with the controlling-stockholder framework operating as a narrow additional duty rather than as a separate equitable framework. Where Texas SB 29 codifies the business-judgment rule with procedural accelerators (§§ 21.4161, 21.554), Nevada relies on the statutory standard itself without comparable expedited procedures. The three states' choices converge on similar defendant-favorable outcomes through structurally distinct routes.

1. How aggressively will Nevada courts interpret the controlling-stockholder safe-harbor presumption?

The disinterested-committee approval safe-harbor is the most important practical feature of the new controller framework. The first cohort of post-AB-239 controller-transaction litigation will define how robust the presumption is in practice. A vigorously enforced presumption substantially reduces controller-transaction exposure; a more skeptical judicial application reduces the doctrinal innovation's practical reach.

2. Does the § 78.046 jury-trial-waiver authority interact with the Seventh Amendment in federal proceedings?

State-law jury-trial-waiver provisions in corporate governing documents have not been definitively tested in federal court for federal-question internal-affairs claims. The Texas equivalent (§ 2.116) is more recent, and the Delaware Salzberg v. Sciabacucchi analytical framework was developed in a different doctrinal context. The federal-court interaction is the first significant open doctrinal question.

3. How does Nevada's adoption curve compare to Texas's?

The SMU CGI adoption tracker surfaces the empirical record. Nevada's NRS § 78.046 articles-of-incorporation requirement is structurally more demanding (articles amendment requires both board and stockholder approval) than Texas's TBOC § 2.116 governing-documents authority. Comparing adoption rates between the two states' jury-trial-waiver provisions is the cleanest empirical comparison available.

4. Will the SEC's post-Nov-17-2025 (i)(1) state-law improper-subject route apply to Nevada-incorporated firms?

The SEC Division of Corporation Finance's November 17, 2025 process retreat applies to Rule 14a-8 proposals across all U.S. issuers regardless of state of incorporation. Whether Nevada law's relatively narrow proper-subject doctrine creates a comparable exclusion pathway to Delaware's developing improper-subject theory is an open federal-state question. The Nevada equivalent has not been developed in Nevada Supreme Court jurisprudence and has not received the same SEC Chair-level endorsement that Delaware's theory received from Chair Atkins's October 2025 Weinberg Center keynote.