After Elon Musk Delaware exit, state weighs overhaul of corporate law

Tesla CEO Elon Musk turned Delaware’s corporate law into a hot-button topic last year after a judge there ruled that his $56 billion pay package from 2018 was illegally granted and should be rescinded.

In social media posts, Musk smeared the judge and became an outspoken critic of Delaware’s judiciary, moving the site of incorporation for Tesla and his other companies out of the state while encouraging others to follow suit. Dropbox moved its site of incorporation to Nevada, and Bill Ackman said his Pershing Square Capital Management would exit Delaware. Meta and Walmart are reportedly considering leaving.

After a flurry of such announcements, Delaware’s Senate Majority Leader Bryan Townsend, a corporate attorney by trade and former clerk for Delaware’s Court of Chancery, began looking into the matter with fellow elected leaders. He then moved to sponsor a bill, known as SB 21, aimed at making Delaware a more attractive state for businesses.

On Thursday, the state Senate voted to pass an amended version of SB 21. If it passes Delaware’s House of Representatives, in a vote expected next week, and gets signed by the governor, the bill would change the state’s corporate law. Notably, it would alter how companies can use independent directors and other officials to ensure deals they’ve made will pass muster in court, and limit the records that shareholders can obtain from companies when investigating possible wrongdoing.

Townsend told CNBC that the aim of the bill is to ensure Delaware corporate law is clearer and more predictable, and that the state remains attractive to both investors and corporate leaders.

Many institutional investors, legal scholars and shareholders’ attorneys have opposed the bill, arguing that it would harm minority shareholders and allow boards and executives to make decisions based on their own interests rather than for the broader investor base.

The International Corporate Governance Network (ICGN), consisting of investors with more than $90 trillion in combined assets under management, spoke out against the bill on Tuesday. According to its website, ICGN members include Alliance Bernstein, the Swedish AP funds, BlackRock, CalPERS, CalSTRS, Franklin Templeton, Norges and Vanguard.

ICGN CEO Jen Sisson cautioned in a letter sent to Delaware state senators and representatives that SB 21 “will be detrimental to shareholder rights, with potentially significant negative implications for long-term returns for investors, including people saving for their retirements, current retirees and other individuals investing their savings.”

Sisson also said the bill would “reduce judicial oversight” and diminish shareholders’ trust that they can “seek remedies through litigation, when necessary.”

The anti-Delaware sentiment has at least some political motivations. While aligning themselves with President Donald Trump, executives like Musk and Ackman are trying to publicly undermine what they describe as “activist judges” who have issued rulings they found disagreeable.

Musk also has a lot of money potentially at stake. If adopted, legal scholars have argued, the new law could help the world’s richest person in his effort to reverse the court’s order in January 2024 that rescinded his mammoth pay package.

As CNBC previously reported, Richards, Layton & Finger, a corporate defense firm whose clients include Musk and Tesla, helped draft the bill. The firm told CNBC that it wasn’t working on behalf of any specific client and that it was “part of a group, including highly respected lawyers, professors, and former jurists.”

Other shareholders’ attorneys have opposed SB21, or called for significant revisions, in part because of the bill’s unusual rollout.

Changes to Delaware corporate law historically have been drafted by a broad coalition of attorneys representing companies, executives and minority shareholders, and who are part of the Delaware State Bar Association’s Corporation Law Council (CLC).

SB 21 was introduced to Delaware’s legislature on Feb. 17, without any initial review or participation by the CLC.

Townsend said Delaware’s elected leaders had fielded complaints from a number of public companies, or attorneys representing them, which he declined to name. Their frustrations had reached a “boiling point” he said, while other states like Texas and Nevada were making a concerted effort to provide an alternative.

“We wanted to address what we can legislatively,” Townsend said.

If Delaware’s House passes the bill, it would hit the desk of Democratic Gov. Matt Meyer.

Even though Delaware is a heavily Democratic state — Trump lost by almost 15% in the 2024 election — the legislation has support from some prominent party leaders, including the governor, as well as corporate defense attorneys, legal scholars and former Delaware litigants unhappy with prior rulings in the state.

Meyer said in an interview on Tuesday with CNBC’s Andrew Ross Sorkin that attorneys and corporate executives have told him that “there is some loss of clarity, predictability and fairness” in Delaware’s corporate law that he believes should be remedied.

A group of 21 law firms, including Cravath, Swaine & Moore, Gibson Dunn and Latham Watkins, sent a letter of encouragement to the state’s general assembly dated March 11.

The group wrote that the bill “provides statutory definitions and safe harbors that enhance clarity and will facilitate proactive evaluation of director appointments, conflicts cleansing and transactional planning.” SB 21 could also help companies incorporated in Delaware to “streamline corporate decision-making and transactional execution,” the lawyers wrote.

In his CNBC interview, Meyer downplayed fears that a so-called DExit was underway, a reference to a mass exodus of companies out of Delaware to incorporate in other states.

Delaware boasts 2.2 million corporate entities from around the world that are registered in the state, including 81% of U.S. companies that went public last year, Meyer said, adding, “The idea that we’re losing something is not totally accurate.”

When he was running for governor, Meyer’s campaign was heavily supported by entrepreneur Phil Shawe, a former Delaware litigant who became an outspoken critic of the state’s Court of Chancery after he was sanctioned in a case concerning who should maintain ownership of a business he started with his ex-fiancee. In 2018, he moved incorporation of the company, TransPerfect, to Nevada.

Last year, Shawe spent $2 million on an ad campaign slamming Delaware, and supporting Musk, all while encouraging other companies to flee the state. Shawe also contributed over $1 million to fund a political action committee supporting Meyer.

Shawe told CNBC, in an emailed statement, that he was not involved in drafting SB21 but “had lots of concerns and ideas” about Delaware’s Court of Chancery, and was “proud to have been at the forefront of this important discussion.”

Gov. Meyer’s office didn’t respond to a request for comment.

WATCH: Interview with Delaware Gov. Matt Meyer