Minutes Are Worth the Minutes: Good Documentation Practices Improve Board Deliberations and Reduce Regulatory and Litigation Risk

Posted 4 April 2024 by Leo E. Strine, Jr., former Chief Justice and Chancellor of the State of Delaware, summarising his forthcoming Fordham Journal of Corporate and Financial Law article based on the 21st Annual DeStefano Lecture of 27 February 2024. Where minutes and advisor presentations document why the board acted, courts have generally refused petitioners access to texts and emails; where decisions were made through informal communications, courts have required wide-ranging discovery; and where minutes are approved in bulk after a process has concluded or after a complaint is filed, courts have given them little weight and resolved doubts in favour of plaintiffs. The post sets out seven protocol recommendations including approving each meeting's minutes at the very next meeting and approving key minutes in meetings rather than by written consent.