Are Your Corporate Board Minutes Ready for Litigation?
One Minute Matters Video Series
9.10.26
A proper record of your board meeting isn’t just good governance. In Delaware, it could be your best defense.
Two opinions from the state’s Court of Chancery last month offer a clear picture of how courts use board materials when litigation arises (including what gaps they are looking for). Jeff Gifford breaks down what both decisions mean for how boards should document their work.
Key Takeaways:
- City of Pontiac Police et al. v. Dayforce, Inc: The court flagged discrepancies between a merger proxy statement and board minutes, and identified executive sessions that lacked separately memorialized minutes.
- NCP US Terminals LP v. Odfjell Terminals US Holdings, LLC: The court used a meeting agenda and slide deck to resolve contradictory board testimony, concluding that a matter was discussed simply because it appeared on the agenda.
Together, the opinions reinforce that your entire board package (agenda, board book, minutes, etc.) functions as a unified evidentiary record. The relative weight given to each agenda item in the minutes, the documentation of executive sessions, and the consistency between minutes and later disclosures all matter when litigation arises.
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