Corporate officers occupy an unusual place in corporate law. They are among the most important actors in the modern corporation, making many of the decisions that shape a company’s day-to-day operations, strategy, risk taking, and compliance.[1] Yet compared with corporate directors and stockholders, officers have received remarkably little attention from courts, legislatures, and corporate law scholars.[2]

In a recent article, I identify one reason for this shortcoming: corporate law has historically treated officers as a homogeneous group. In reality, they are anything but.

The Problem With the “Officer” Category

Corporate law traditionally divides the participants in a corporation into familiar categories: directors, officers, and stockholders.[3] Each category carries different powers, responsibilities, and potential liabilities. But within the officer category, the law has generally failed to distinguish among individuals who may exercise dramatically different levels of authority.[4]

Consider the difference between a corporation’s chief executive officer and a lower-level officer. The CEO may exercise enormous authority over corporate strategy, personnel, operations, and risk. Another officer may have responsibility for a relatively narrow business function. Yet corporate statutes and fiduciary doctrine have historically tended to refer simply to the corporation’s “officers.”[5]

That approach is lacking because officers are not inherently homogeneous. Directors generally exercise their authority collectively as a board or by committee. Officers, by contrast, typically act individually, and the scope of their authority can vary considerably depending on their position and responsibilities.

This matters because legal rules governing fiduciary duties, liability, indemnification, exculpation, and other matters often turn on an individual’s status as an “officer.”

Corporate Law Is Beginning to Recognize the Difference

An important development is underway. Recent statutory changes and judicial decisions suggest that corporate law is gradually abandoning its assumption that all officers should be treated alike.

My article describes this development as the bifurcation of officers: the emerging division of officers into two broad groups—high-level executive officers, often associated with the C-suite, and lower-level, non-executive officers.

Delaware law provides several examples.

For personal jurisdiction purposes, Delaware does not treat every person bearing an officer title identically. Its implied-consent statute identifies particular senior officers—including the president, CEO, COO, CFO, chief legal officer, controller, treasurer, and chief accounting officer—along with certain highly compensated executive officers.[6] A recent Court of Chancery decision makes the implications of this distinction particularly concrete. In Altigen Communications, Inc. v. Day, the court considered whether a corporation’s chief strategy officer qualified as an “officer” for purposes of Delaware’s officer-consent statute, 10 Del. C. § 3114(b).[7] Although the defendant held a C-suite title, and the corporation alleged that he owed and breached fiduciary duties as an officer, the court concluded that those facts did not bring him within the statute.[8] Section 3114(b), the court pointed out, identifies a narrower set of senior corporate roles, and an officer with a different title falls within that group only if the officer’s responsibilities functionally equate to or significantly overlap with those of one of the statutorily identified roles.[9] The court found that the corporation had not made that showing with respect to the defendant’s chief strategy officer position.

Altigen thus provides a clear illustration of officer bifurcation. As the court recognized, the statutory definition is “plainly narrower than whoever has an officer title.”[10] An individual can hold an officer title, exercise significant corporate authority, and owe fiduciary duties without necessarily qualifying as an “officer” for every statutory purpose. In other words, the relevant inquiry increasingly depends not simply on whether an individual is an officer, but on the particular legal rule at issue and the functions the individual performs.

Delaware has taken a similar approach to indemnification. Amendments to section 145(c) of the Delaware General Corporation Law narrowed the category of officers automatically entitled to mandatory indemnification following success in litigation by tying the relevant definition of “officer” to the executive-officer categories used in the jurisdictional statute.[11] The result is effectively two groups: senior executive officers who receive statutory mandatory indemnification and other officers whose rights depend upon corporate governing documents or agreements.

Officer exculpation provides another example. Delaware’s 2022 amendments permitting corporations to exculpate officers from certain monetary liability do not extend to everyone who might hold an officer title.[12] The protection is directed at specified executive officers. The Model Business Corporation Act subsequently adopted an officer exculpation provision that likewise begins with a defined group of senior officers, while providing mechanisms for expanding that group.[13]

Taken together, these developments suggest something larger than a collection of technical statutory amendments. They reflect a growing recognition that an officer’s legal treatment may depend upon the officer’s place within the corporate hierarchy.

Fiduciary Duties May Be Moving in the Same Direction

The shift is also appearing in fiduciary duty doctrine.

The Delaware Supreme Court famously stated in Gantler v. Stephens that corporate officers owe the same fiduciary duties of care and loyalty as directors.[14] But saying that directors and officers owe the same general duties does not necessarily tell us how those duties should apply to officers performing very different functions.

The Delaware Court of Chancery’s decision in In re McDonald’s Corporation Stockholder Derivative Litigationillustrates the point.[15] In recognizing that corporate officers can owe oversight duties, the court also emphasized that the scope of an officer’s oversight responsibility depends upon the officer’s particular remit.[16] A CEO or chief compliance officer may have company-wide responsibilities, while a CFO’s oversight responsibilities may center on financial matters and a chief legal officer’s on legal matters.[17]

That reasoning represents an important conceptual shift. The relevant question is no longer simply, “What duties do officers owe?” Increasingly, it may be, “What duties does this officer owe given this officer’s authority, responsibilities, and position within the corporation?”

Why Bifurcation Makes Sense

The broader principle underlying this development is relatively intuitive: Accountability should correspond to authority.

Executive officers exercise substantial discretion, influence corporate policy, and make decisions capable of exposing the corporation and its stakeholders to significant risk. Lower-level officers may exercise considerably narrower authority. Treating those individuals identically for every corporate law purpose can therefore produce a mismatch between legal responsibility and organizational reality.

Bifurcation offers a possible way to recalibrate that relationship. Rather than asking whether all officers should be treated like directors or whether all officers should instead be treated principally as agents, corporate law can recognize that the answer may depend upon the officer. Senior executive officers may resemble directors in important respects, while lower-level officers may more closely resemble traditional agents.

Importantly, bifurcation does not mean that non-executive officers cease to be fiduciaries.[18] Instead, it prompts a more difficult set of questions: What obligations attach to different officer roles? What standard of conduct should apply? What standard of judicial review should courts use? And what consequences should follow from a breach? Plaintiffs’ lawyers, defense counsel, and courts may increasingly have to engage with these officer-specific questions rather than relying on generalized references to “management.”

The Next Challenge: Who Counts as an Executive Officer?

Bifurcating officers also creates a definitional challenge. Corporate law has historically done a poor job of defining who qualifies as an “officer.”[19] As the law increasingly distinguishes among officers, however, a second question emerges: Even if someone is an officer, what kind of officer is that person for purposes of the particular legal rule at issue?

Two recent Delaware decisions address the distinction. Gilbert v. Unisys Corp. addresses the first question. In that case, the Delaware Court of Chancery considered whether two individuals holding the title of vice president were “officers” entitled to mandatory advancement under the corporation’s certificate of incorporation and bylaws.[20] Neither governing document defined the term “officer,” requiring the court to determine whether the plaintiffs fell within that category. Looking to the corporation’s bylaws, the court identified two categories of officers: officers expressly designated by title—including “one or more Vice Presidents”—and additional officers that the board could elect in its discretion.[21] Because the plaintiffs had been hired as vice presidents, the court concluded that they qualified as officers and were entitled to mandatory advancement.[22]

Altigen Communications, Inc. v. Day addresses the second question. In Altigen, the defendant was the corporation’s chief strategy officer, but the Court of Chancery held that his title, seniority, and fiduciary status did not establish that he was an “officer” covered by Delaware’s officer-consent statute.[23] Importantly, Section 3114(b) applies to a specified group of senior officers, and an officer bearing another title only falls within that specific group when the officer performs functions equivalent to or substantially overlapping with one of the statutorily-identified officer roles.[24]

Gilbert  and Altigen are noteworthy because they demonstrate that the difficulty of defining corporate officers is not merely theoretical.[25] Read together, these opinions expose two increasingly important classification questions in officer law: Is this person an officer, and, if so, is this person the type of officer covered by the particular legal rule at issue? Answering these questions become even more complicated as corporate law increasingly distinguishes among different types of officers. A person may qualify as an officer for purposes of a corporation’s bylaws, for example, but not fall within the narrower category of senior officers covered by particular statutory provisions.[26]

This makes linguistic precision increasingly important. If corporate law continues to differentiate among officers based on their authority, responsibilities, and position within the corporate hierarchy, legislatures and corporations will need to be clearer about which officers fall within which categories. Otherwise, courts will be left to resolve these questions after disputes arise, producing uncertainty for corporations and individuals alike.

At the same time, Gilbert and Altigen suggest that private ordering can play an important role in addressing the problem. Corporations can define officer classifications expressly in their charters, bylaws, employment agreements, and indemnification or advancement provisions rather than relying on the generic term “officer.” As statutory law increasingly distinguishes executive officers from other corporate employees who hold officer titles, careful drafting will become more important.

A Recalibration of Corporate Governance

The emerging bifurcation of corporate officers is more than a collection of isolated statutory amendments and judicial decisions. It reflects a broader recalibration of corporate governance.

Corporate law has long sought to align authority with accountability.[27] Directors exercise substantial authority and therefore face fiduciary obligations and potential liability, tempered by doctrines such as the business judgment rule and statutory protections such as exculpation and indemnification. As executive officers have assumed increasingly significant roles in corporate decision-making, it makes sense that corporate law would begin to develop a similarly calibrated framework for them.

But that framework need not apply identically to every employee who carries an officer title. The emerging distinction between executive and non-executive officers offers an opportunity to develop rules that better reflect the realities of modern corporations.

The challenge now is to make those distinctions explicit and coherent. Cases such as McDonald’s and Altigendemonstrate that courts are beginning to consider an officer’s particular responsibilities when defining legal obligations, while cases such as Gilbert demonstrate that courts must sometimes confront the more fundamental question of who qualifies as an officer at all. Statutory developments involving exculpation and indemnification similarly distinguish among officers rather than treating the category as monolithic.

Taken together, these developments suggest that corporate law may be moving away from asking simply whether someone is an “officer” and toward a more nuanced inquiry: “What kind of officer is this, what authority does the officer exercise, and what legal consequences should follow from that role?”

That is an important shift. Recognizing that not all officers are the same may ultimately produce a corporate governance framework that more closely aligns legal duties, protections, and liability with the actual allocation of authority inside modern corporations.

Practical Takeaways

The emerging bifurcation of officers is not simply an academic development. It affects how corporations should draft documents, structure management authority, allocate protections, and evaluate potential liability.

The central idea is straightforward: An officer’s legal treatment should increasingly correspond to that person’s actual role, authority, responsibilities, and exposure to corporate risk.

For corporate counsel, the practical response is to move away from treating “officer” as a single undifferentiated category. Officer titles, duties, protections, and reporting lines should be reviewed with greater precision.[28]

Recent developments suggest that corporate law is already moving in that direction. The remaining task for lawyers is to make sure corporate governance practices keep pace.

ENDNOTES

[1] See Grimes v. Donald, No. C.A. 13358, 1995 WL 54441, at *8 (Del. Ch. Jan. 11, 1995) (“Of course, given the large, complex organizations through which modern, multi-function business corporations often operate, the law recognizes that corporate boards, comprised as they traditionally have been of persons dedicating less than all of their attention to that role, cannot themselves manage the operations of the firm, but may satisfy their obligations by thoughtfully appointing officers, establishing or approving goals and plans and monitoring performance.”), aff’d, 673 A.2d 1207 (Del. 1996).

[2] See Megan Wischmeier Shaner, The “Director Preference” in Stockholder Litigation, 39 U. Haw. L. Rev. 75, 80 (2016) (discussing the lack of officer-specific case law).

[3] See, e.g., Del. Code Ann. tit. 8, § 145 (2025).

[4] See Deborah DeMott, Corporate Officers as Agents, 74 Wash. & Lee L. Rev. 847, 848 (2017) (“Although officers are crucial to explaining how corporations function, scholarly and theoretical accounts of corporate law and governance tend to slight officers’ positions as well as the distinctive quality of other duties.”).

[5] Initial corporate codes identified a handful of officers that a corporation was required to have, but over the years statutory reforms largely stripped out all references to any particular office or title. Compare Del. Code Ann. tit. 8, § 142 (1967) (requiring corporations to have “a president, secretary, and treasurer”), with Del. Code Ann. tit. 8, § 142 (2024) (requiring corporations to “have such officers with such titles and duties as shall be stated in the bylaws or in a resolution of the board of directors” and that “[o]ne of the officers shall have the duty to record the proceedings of the meetings of the stockholders and directors”). Compare Model Bus. Corp. Act § 50 (Am. Bar Ass’n 1969) (“The officers of a corporation shall consist of a president, one or more vice presidents as may be prescribed by the by-laws, a secretary, and a treasurer, each of whom shall be elected by the board of directors at such time and in such manner as may be prescribed by the by-laws.”), withModel Bus. Corp. Act § 8.40(a) (Am. Bar Ass’n 2016) (“A corporation has the officers described in its bylaws or appointed by the board of directors in accordance with the bylaws.”).

[6] See Del. Code Ann. tit. 10, § 3114 (2025).

[7] 2026 WL 2455131 (Del. Ch. Aug. 21, 2026).

[8] Id. at *7-8.

[9] Id. at *6-8.

[10] Id. at *8.

[11] See Del. Code Ann. tit. 8, § 145(c) (2025).

[12] See Del. Code Ann. tit. 8, § 102(b)(7) (2022).

[13] See Model Bus. Corp. Act § 2.02(f) (Am. Bar Ass’n 2025).

[14] 965 A.2d 695, 708-09 (Del. 2009).

[15] 289 A.3d 343 (Del. Ch. 2023).

[16] Id. at 369; see Segway Inc. v. Cai, 2023 WL 8643017, at *4 (Del. Ch. Dec. 14, 2023) (citing McDonald’s and stating that an officer’s duty of oversight “would only extend to matters within the officer’s remit”).

[17] Id. at 369-70.

[18] Indeed, in Atigen, the vice chancellor pointed out that “All officers are fiduciaries, but not all fiduciaries are officers.” 2026 WL 2455131, at *8 (Del. Ch. Aug. 21, 2026).

[19] See Jennifer O’Hare, Private Ordering and Improving Information Flow to the Board of Directors: The Duty to Inform Bylaw, 53 U. Rich. L. Rev. 557, 563 (2019) (“Given the importance of the role played by officers in corporations, as well as the use of [the] term in several corporate statutes, it is curious that neither the Delaware legislature nor the Delaware judiciary have defined ‘officer’ for purposes of corporate law.”).

[20] 2024 WL 3789952 (Del. Ch. Aug. 13, 2024).

[21] Id. at *9-10.

[22] Id. at *14-15.

[23] 2026 WL 2455131, at *8-9 (Del. Ch. Aug. 21, 2026).

[24] Id. at *6-7.

[25] For other examples of cases addressing issues surrounding the definition of “officer,” see Aleynikov v. Goldman Sachs Group, Inc., 765 F.3d 350 (3d Cir. 2014); Aleynikov v. The Goldman Sachs Group, Inc., 2016 WL 3763246 (Del. Ch. July 13, 2016) (ORDER); Kale v. Wellcare Health Plans, Inc., C.A. No. 6393-VCS (Del. Ch. June 13, 2011) (TRANSCRIPT); Harris v. Harris, 289 A.3d 310 (Del. Ch. 2023).

[26] See id. at *8 (“Officer status matters for a variety of legal purposes, … For some purposes, a junior vice president might be an officer; for others, perhaps not.”).

[27] See Christopher M. Bruner, Good Faith, State of Mind, and the Outer Boundaries of Director Liability in Corporate Law, 41 Wake Forest L. Rev. 1131, 1133 (2006).

[28] But see Jennifer O’Hare, Private Ordering and Improving Information Flow to the Board of Directors: The Duty to Inform Bylaw, 53 U. Rich. L. Rev. 557, 566 (2019) (finding that the bylaws of the fifty largest U.S. public corporations provide little information about officers or their duties beyond basic boilerplate provisions).

Megan Wischmeier Shaner is the Kenneth E. McAfee Centennial Chair in Law and President’s Associations Presidential Professor at the University of Oklahoma College of Law. This post is based on her recent article, “Recalibrating Corporate Governance: Bifurcating Officers,” available here.