Blasius, Bylaw Amendment Powers & Supermajority Amendment Bylaws

J.S. Park - Dentons LLP
Vol. 18
December 2017
Page

This paper considers whether under Delaware law a shareholder can defeat a supermajority amendment bylaw unilaterally adopted by a corporation’s board of directors. It argues that the principles developed in Blasius Industries, Inc. v. Atlas Corp. are persistent and may reemerge to empower plaintiff shareholders and shareholder activists to strike down such a bylaw. It is further inferred that “Blasius principles” could be used against a supermajority amendment bylaw unilaterally adopted by a board. This position takes into account the unsettled allocation of bylaw amendment powers under Delaware law as well as the challenge posed to Delaware’s board-centrism.

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