The Triumph of Private Ordering Since Manti Holdings

In an article for Directors & Boards titled “The Triumph of Private Ordering Since Manti Holdings,” corporate partner Doug Raymond explains how Delaware’s courts and legislature have steadily expanded the ability of companies and stockholders to shape governance on their own terms, raising new questions about flexibility and investor protection.

Raymond overviews the Delaware Supreme Court’s decision in Manti Holdings, which addressed whether the Delaware General Corporation Law prohibits Delaware corporations from enforcing advance waivers by stockholders of appraisal rights. “Manti Holdings marked the beginning of a broader movement toward private ordering, giving corporations, boards, and stockholders more freedom to structure their internal affairs and governance with reduced risk of judicial interference,” Raymond notes.

The article also examines the Chancery Court’s decision in Moelis, which struck down several provisions in a long-standing stockholder agreement that gave a controlling stockholder the right to approve or at least veto a wide range of corporate actions.

“The broader public policy implications of these shifts — whether they favor business interests too heavily at the expense of minority stockholder protections — remain unresolved and will likely continue to be a subject of scrutiny and debate in the years ahead,” Raymond concludes.