In 2025, it is essentially corporate governance conference malpractice to fail to include whether Delaware companies should reincorporate in Nevada or Texas.

A handful of disappointing cases for some influential billionaire founders have created what is arguably a tempest in a teapot. Notwithstanding those high-profile cases, the vast majority of fiduciary duty cases brought in Delaware Chancery Court still break in favor of the board.

Still, this tempest is significant for Delaware given how much the state depends on the corporate franchise taxes it receives from companies incorporated in Delaware. Understanding this, the Delaware legislature has gone out of its way to become even more business friendly.

But give Nevada and Texas full credit for striking while the iron is hot, including by taking steps to set up dedicated business courts of their own.

In the near term, and notwithstanding all the noise, this issue has not been a big driver of D&O litigation.

Looking ahead, the obvious question is this: Will all public companies ask their shareholders to let them re-domicile into Nevada or Texas? No.

Will some founders who want to become the next high-profile billionaire prefer to incorporate in Nevada or Texas? Yes, unless they realize that they might one day be a minority shareholder, in which case they might want to benefit from the protections Delaware affords to all shareholders.

What will this mean for director and officer liability? Over time, we should see fewer breach of fiduciary duty suits given that these Delaware-alternative regimes have the explicit goal of making such suits more difficult for shareholder plaintiffs. Above all else, the plaintiffs’ bar is comprised of rational economic actors, not activists tilting at windmills.

Another consequence may be diminished demand for dedicated Side A insurance. Delaware-incorporated companies, even extremely large ones, tend to purchase dedicated Side A D&O insurance because they usually cannot indemnify their directors and officers for settlements of derivative suits. Companies incorporated in Nevada, however, have considerably more flexibility in this regard.