On February 25, the Supreme Court unanimously decided Walden v. Fiore, a case with significant implications for Delaware’s officer and director consent statute, § 3114. I recently argued that § 3114 is unconstitutional, especially in light of the Court’s 2011 opinions in Nicastro. Walden makes even more clear that § 3114 violates the Due Process Clause.
In Walden, a DEA agent seized almost $100,000 in cash from two Nevada residents who were changing planes in Atlanta en route from Puerto Rico to Nevada. The agent then allegedly drafted an affidavit that could be used to institute forfeiture … Read more
In an article to be published this Spring in the DePaul Law Review, I argue that Delaware’s position as the center of corporate litigation has been rooted in two unique but unconstitutional approaches to personal jurisdiction over fiduciaries. Until Delaware addresses serious problems with its personal jurisdiction statute, its other attempts to retain caseflow will ultimately be ineffective.
It is no secret that the Court of Chancery judges are worried and angry. The lifeblood of that court, stockholder litigation, is migrating out of Delaware to other states. If Delaware continues to lose caseflow, it risks losing its dominance in corporate … Read more
In an article just published in the Delaware Journal of Corporate Law, I argue that Delaware’s implied-consent-to-jurisdiction statute is unconstitutional. That statute, Section 3114, is routinely invoked to assert personal jurisdiction over virtually every nonresident director and officer defendant in shareholder litigation. The Supreme Court’s decision in J. McIntyre Machinery, Ltd. v. Nicastro underscores Section 3114’s constitutional problems, which were plain in 1977 when Delaware adopted it in the wake of Shaffer v. Heitner.
My article is the first in a generation to challenge Section 3114 and the first ever to consider it in light of Nicastro. I … Read more