In re Fox Corporation/Snap Inc. Section 242 Litigation

EFiled: Jan 25 2024 02:30PM EST
Filing ID 71876477
Case Number Multi-Case
IN THE SUPREME COURT OF THE STATE OF DELAWARE

IN RE FOX CORPORATION §
/SNAP INC. SECTION 242 § Nos. 120 &121, 2023
LITIGATION § (Consolidated)
§
§ Court Below: Court of Chancery
§ of the State of Delaware
§
§ C.A. Nos. 2022-1007;
§ 2022-1032
§
§

Submitted: October 18, 2023
Decided: January 17, 2024
Revised: January 25, 2024

Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LEGROW, and
GRIFFITHS, Justices; constituting the Court en Banc.

Upon appeal from the Court of Chancery. AFFIRMED.

Gregory V. Varallo, Esquire, Daniel E. Meyer, Esquire, BERNSTEIN LITOWITZ
BERGER & GROSSMANN LLP, Wilmington, Delaware; Mark Lebovitch,
Esquire, Edward G. Timlin, Esquire (argued), BERNSTEIN LITOWITZ BERGER
& GROSSMANN LLP, New York, New York for Appellants Electrical Workers
Pension Fund, Local 103, I.B.E.W. and Karen Sbroglio.

William B. Chandler III, Esquire, Brad D. Sorrels, Esquire (argued), Amy L.
Simmerman, Esquire, Daniyal M. Iqbal, Esquire, Nora M. Crawford, Esquire,
WILSON SONSINI GOODRICH & ROSATI, P.C., Wilmington, Delaware; Mark
R. Yohalem, Esquire, WILSON SONSINI GOODRICH & ROSATI, P.C., Los
Angeles, California for Appellee Fox Corporation.

William M. Lafferty, Esquire, Susan W. Waesco, Esquire, Alexandra M. Cumings,
Esquire, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware
for Appellee Snap Inc.
SEITZ, Chief Justice:

Section 242(b)(2) of the Delaware General Corporation Law requires a

separate class stockholder vote to amend a corporate charter with a multi-class

capital structure if the amendment would “alter or change the powers, preferences,

or special rights of the shares of such class so as to affect them adversely.” In 2022,

Fox Corporation and Snap Inc. adopted officer exculpation charter amendments

authorized by recent Delaware legislation. Fox and Snap Class A non-voting

common stockholders filed suit in the Court of Chancery and sought to invalidate

the amendments. They claimed that a separate class vote was required because the

amendments deprived them of the “power” to sue officers for damages for duty of

care violations.

The Court of Chancery granted summary judgment to Fox and Snap. The

court held that, even though the Class A stockholders had a good plain-meaning

argument – a stockholder’s “power” included the power to sue – the defendants had

linked the “powers” in Section 242(b)(2) to the “powers” in Section 102 of the

DGCL, which requires those “powers” to be stated in the charter. The right to sue

corporate officers for damages for breach of the duty of care is not a class-based

power stated in either charter. Thus, the Fox and Snap exculpatory charter

amendments did not require separate Class A stockholder votes.

2
 Although the court had reservations about this interpretation, it ultimately held

that two decisions controlled the outcome – Hartford Accident & Indemnity Co. v.

W.S. Dickey Clay Mfg. Co. and Orban v. Field.1 In these long-standing decisions

that interpreted the charter amendment statute in its various forms, our Court and the

Court of Chancery held that a separate class stockholder vote was required only

when the charter amendment adversely affected a peculiar attribute of the class of

stock rather than rights incidental to stock ownership. Finally, the Court of Chancery

noted the lack of treatises or commentary supporting the plaintiffs’ position, and

long-standing practitioner understanding about how the statute works.

On appeal, the plaintiffs repeat their plain-meaning argument, challenge the

precedential value of the two key decisions, and advance parts of the Court of

Chancery’s analysis that it ultimately decided not to follow. We affirm the Court of

Chancery’s judgment. Based on long-standing precedent, which the Class A

Stockholders have not asked us to overrule, the powers, preferences, or special rights

of class shares in Section 242(b)(2) refers to the powers, preferences, or special

rights authorized for a class by Section 151(a) and expressed in the charter as

required by Sections 102(a)(4) and 151(a). The powers, preferences, or special

rights of class shares expressed in the charter include default provisions in the

1
24 A.2d 315 (Del. 1942) [hereinafter Dickey Clay]; 1993 WL 547187 (Del. Ch. Dec. 30, 1993)
[hereinafter Orban].
3
DGCL, which are part of every charter under Section 394. The ability to sue

directors or officers for duty of care violations is an attribute of the Companies’

stock, but not a power, preference, or special right of the Class A common stock

under Section 242(b)(2).

I.

A.

The facts are undisputed. In 2019, through a spin-off from its former

corporate parent, News Corporation, Fox Corporation became a standalone, publicly

traded company. Since the transaction closed, Fox has had a dual-class stock

structure. Fox’s Class B common stockholders have one vote per share. Fox’s Class

A common stockholders have no voting rights, except as stated in Fox’s certificate

of incorporation or when required by the Delaware General Corporation Law

(“DGCL”).

At Fox’s 2022 annual meeting, the board recommended a charter amendment

that would exculpate Fox’s officers for duty of care damages liability under the

newly amended Section 102(b)(7) of the DGCL (“Fox Amendment”). Fox’s Class

B common stockholders voted to approve the amendment. Fox did not solicit a vote

from the Class A common stockholders.

The story was the same for Snap Inc. (f/k/a Snapchat Inc.), which has had a

three-class stock structure since its IPO in March 2017. Snap’s Class A common

4
stock – which is widely held and publicly available – generally has no power to vote,

except as set forth in Snap’s certificate of incorporation or when required by

Delaware law. Snap’s Class B common stock is entitled to one vote per share and

is not publicly traded. Snap’s Class C common stock has ten votes per share and is

not publicly traded.

On August 24, 2022, Snap’s board recommended a charter amendment that

would exculpate Snap’s officers from duty of care damages liability under the newly

amended Section 102(b)(7) of the DGCL (“Snap Amendment”). Snap’s Class C

common stockholders executed written consents adopting the amendment. The

Class A stockholders did not vote on the amendment.

B.

In November 2022, a Fox Class A stockholder and a Snap Class A stockholder

(“Class A Stockholders”) filed separate class action complaints in the Court of

Chancery which were eventually consolidated against Fox and Snap (together, the

“Companies”). They sought, among other things, a declaration that the charter

amendments did not comply with Section 242(b)(2) and were invalid. The parties

brought cross-motions for summary judgment, each offering a different

interpretation of Section 242(b)(2).

Section 242(b)(2) states, in part, that:

The holders of the outstanding shares of a class shall be entitled to vote
as a class upon a proposed amendment, whether or not entitled to vote
5
 thereon by the certificate of incorporation, if the amendment would
increase or decrease the aggregate number of authorized shares of such
class, increase or decrease the par value of the shares of such class, or
alter or change the powers, preferences, or special rights of the shares
of such class so as to affect them adversely.2

The Class A Stockholders claimed that Section 242(b)(2) unambiguously

required a class vote before adopting the exculpatory charter provisions.3 As they

argued, stockholders have three fundamental “powers” – to vote, sell, and sue. A

power, according to Black’s Law Dictionary, includes “[t]he ability to act or not

act[.]”4 It follows, they claimed, that “powers” includes the ability to sue officers

for damages for duty of care violations.

The Class A Stockholders also relied on a prior version of Section 242 and its

predecessor statute, Section 26.5 The prior iterations of Section 242(b)(2) required

a vote if an amendment would adversely affect the “preferences, special rights or

powers” of a class of stock. A 1969 amendment to the statute, which brought Section

242(b)(2) to its current form, rearranged the language “preferences, special rights or

2
8 Del. C. § 242(b)(2) (emphasis added).
3
Pls.’ Omnibus Opening Br. in Supp. of Mots. for Summ. J. at 10–19 [hereinafter Pls.’ Opening
MSJ].
4
Id. at 13 (citing Power, Black’s Law Dictionary (11th ed. 2019); Power, Merriam-Webster (last
visited Nov. 29, 2022), https://www.merriam-webster.com/dictionary/power; Strougo v.
Hollander, 111 A.3d 590, 595 n.21 (Del. Ch. 2015)).
5
Id. at 15; 8 Del. C. § 242(d)(2) (1967) (“If any proposed amendment would alter or change the
preferences, special rights or powers given to any one or more classes of stock by the certificate
of incorporation, so as to affect such class or classes of stock adversely . . . .”); Del. Rev. C. § 2058,
sec. 26 (1935) (“[T]hat if any such proposed amendment would alter or change the preferences,
special rights or powers given to any one or more classes of stock, by the Certificate of
Incorporation, so as to affect such class or classes of stock adversely . . . .”).
6
powers” to “powers, preferences, or special rights[.]” The Class A Stockholders

argued that this change removed any ambiguity and clarified that “powers” was not

cabined to “some unique or ‘special’ power or right allocated to the class of security

at issue.”6

Even if the court found that “powers” is susceptible to more than one meaning,

the Class A Stockholders claimed that “powers” should be read in the context of the

DGCL as a whole.7 They pointed to other code sections that employed the word

“powers” associated with the ability to sue and be sued – Section 121(a) (describing

expansive powers of the corporation and its officers, directors, and stockholders);

Section 122(2) (describing a corporation’s power to sue and be sued); Sections 279

and 291 (describing a trustee’s or receiver’s power to prosecute suits in the

corporation’s name); and Section 123 (describing the corporation’s power to

exercise power respecting securities of other corporations and entities).

Finally, the Class A Stockholders claimed that Dickey Clay and Orban were

“inapposite.” As they argued, the “Dickey Clay Court merely addressed changes to

a capital structure, and not the elimination of a personal power (or even a right)

appurtenant to ownership of that stock.”8 The same was true, they claimed, for

Orban. The Class A Stockholders argued that “the fact ‘special rights’ are not

6
Pls.’ Opening MSJ at 15–16.
7
Id. at 17–18.
8
Id. at 22.
7
implicated by the issuance of a new class of preferred stock that necessarily dilutes

the percentage of the company’s overall voting shares represented by the common

stock is not pertinent to whether a stocks’ [sic] ‘powers’ – which, at a minimum,

include the ability to vote, to sell, and to sue – are adversely affected by elimination

of the right to sue.”9

The Companies countered that Sections 242(b)(2), 151(a), and 102(a)(4) –

with their overlapping use of the terms “powers,” “preferences,” and “special rights”

– must be read together.10 They argue that a contextual reading of Section 242(b)(2)

reveals that the statute covers class voting on charter amendments adversely

affecting only the special characteristics of the class delineated under Section 151(a).

Thus, a stockholder’s ability to sue officers for damages for breach of the duty of

care is not a power, preference, or special right of shares of a class or series within

the meaning of Section 151, which are set forth under Section 102(a)(4).

As for dictionary definitions, the Companies contended that isolating a single

word in the statute ignores the words surrounding it. According to the Companies,

“powers” is part of a series of words that includes “preferences, or special rights of

the shares of such class.”11 The dictionary definitions of those related words include

9
Id. at 25 (emphasis omitted).
10
Defs.’ Omnibus Opening Br. in Supp. of Mots. for Summ. J. & Answering Br. in Opp. to Pls.’
Mots. For Summ. J. at 17–29 [hereinafter Defs.’ Opening MSJ].
11
Id. at 23–25.
8
phrases or terms such as “treating some persons or things more advantageously” and

“unusual” or “extraordinary.”12 In their view, “powers” should be interpreted

similarly. The Companies argued that the Class A Stockholders ignore the

modifying phrase “of the shares of such class,” which confirmed that it is the peculiar

attributes of the class that must be adversely affected, not rights general to all

stockholders.13

Finally, the Companies contended that Dickey Clay and Orban “are the

seminal precedents” interpreting Section 242(b)(2), consistent with decades of

academic and practitioner understanding and usage.14 The cases hold that a charter

amendment class vote is required only when the proposed amendment adversely

affects “the peculiar, unusual, or superior qualities of a particular class.”15 They

argued that the Court in Dickey Clay “considered and accounted for all the relevant

words when declaring its construction of the statute” and did not limit its holding to

the corporation’s capital structure.16 Both cases “concerned charter amendments that

adversely affected common stockholders’ power to vote.”17

12
Preference, Black’s Law Dictionary (11th ed. 2019); Special, Black’s Law Dictionary (11th ed.
2019).
13
Defs.’ Opening MSJ at 27–28.
14
Id. at 31–32.
15
Id. at 31.
16
Id. at 33–34.
17
Id. at 34.
9
 C.

The Court of Chancery observed that “there’s a lot to be said for the plaintiff’s

plain-meaning argument[,]” and if it were writing on a blank slate, it would

“suggest” that the power to sue for damages was not “readily modifiable” without a

separate class vote under Section 242(b)(2).18 But after the court wrestled with

various hypotheticals as it worked through Section 242(b)(2)’s language and how

the statute fit into the DGCL as a whole, the court moved past the plain-meaning

argument and concluded that “the officer exculpation amendment does not require a

class vote of the company’s non-voting stock because the officer exculpation

amendment does not affect a power, preference, or special right that appears

expressly in the charter.”19

The court based its ruling on four grounds: (1) a textual argument that links

the powers, preferences, and special rights in Section 242(b)(2) to the powers,

preferences, and rights of the class set forth in the charter or certificate of

designations under Section 102(a)(4) or stated expressly in the DGCL;20 (2) Dickey

Clay and Orban, which held that, under Section 242(b)(2) and its predecessor

statute, a class vote is only required to enact a charter amendment when it would

18
Elec. Workers Pension Fund, Local 103, I.B.E.W. v. Fox Corp., C.A. No. 2022-1007-JTL at 61,
66 (Del. Ch. Mar. 29, 2023) (TRANSCRIPT) [hereinafter Decision].
19
Id. at 69.
20
Id. at 61–63.
10
impair a “peculiar, or special” characteristic of class shares rather than rights

incidental to share ownership;21 (3) the absence of support for the Class A

Stockholders’ interpretation from commentators;22 and that (4) “Delaware

practitioners have long viewed Dickey Clay as supporting the Companies’ reading

of Section 242(b)(2).”23

The Class A Stockholders raise three issues on appeal – whether the Court of

Chancery erred by (1) rejecting the Class A Stockholders’ plain-meaning argument

that the word “powers” in Section 242(b)(2) includes the ability to sue officers for

damages for breaching their duty of care; (2) holding that “fealty” to Dickey Clay

and Orban dictated the outcome; and (3) considering long-standing expectations of

commentators and practitioners to support its decision. We review the Court of

Chancery’s decision de novo.24

II.

We start with the statutory framework of the DGCL and the precedential gloss

addressing class-based stock voting and charter amendments. In 1899, the General

Assembly enacted the DGCL which authorized corporations to issue separate classes

21
Id. at 4; Id. at 32 (quoting Dickey Clay, 24 A.2d at 318–19); Id. at 36–37 (quoting Orban, 1993
WL 547187, at *8).
22
Id. at 66–67 (“The company has pointed to the absence of any commentary saying anything
different over the past decades.”).
23
Id.
24
See Croda Inc. v. New Castle Cnty., 282 A.3d 543, 547 (Del. 2022) (“We review the court’s
summary judgment ruling de novo. We also review questions of statutory interpretation and
constitutional law de novo.”).
11
of stock with different rights.25 The General Assembly amended the DGCL in 1901

to permit multi-class capital structures through Section 151’s predecessor statute,

Section 13.26 In 1917, the General Assembly enacted the first statute requiring a

class vote for stock issuances.27 Section 26, the predecessor statute to Section

242(b)(2), required a class vote for charter amendments:

if any such proposed amendment would alter or change the preferences
given to any one or more classes of preferred stock, authorized by the
certificate of incorporation, or would increase or decrease the amount
of the authorized stock of such class or classes of preferred stock, or
would increase or decrease the par value thereof.28

By Section 26’s terms, the “preferences” that triggered a class vote referred

to those “authorized by the certificate of incorporation.” In 1927, the General

Assembly amended Section 26 to eliminate the word “preferred,” and thereby

broadened the scope of the class voting provision. It also included language limiting

the right to vote as a class on a proposed amendment only when it “affect[ed] such

class or classes of stock adversely.”29 Section 26 was once again amended in 1931

to the form examined in Dickey Clay. It required a separate class vote on a charter

amendment:

25
Section 137, Chapter 273, Volume 21 Laws of Delaware (enacting the DGCL).
26
Id. (citing Section 13, Chapter 167, Volume 22 Laws of Delaware).
27
Hartford Acc. & Indem. Co. v. W. S. Dickey Clay Mfg. Co., 21 A.2d 178, 182 (Del. Ch. July 9,
1941) (citing Section 12, Chapter 113, Volume 29 Laws of Delaware).
28
Section 12, Chapter 113, Volume 29 Laws of Delaware.
29
Section 10, Chapter 85, Volume 35 Laws of Delaware.
12
 If any such proposed amendment would alter or change the preferences,
special rights or powers given to any one or more classes of stock, by
the Certificate of Incorporation, so as to affect such class or classes of
stock adversely . . . .30

In Dickey Clay, the board of directors recommended a charter amendment that

increased the amount of authorized class A stock.31 The common stockholders

would not receive dividends until the class A stock was retired.32 Voting as a class,

the class A stockholders approved the amendment – as did a majority of the

combined vote of two other classes of preferred and common stock.33 If counted

alone, a majority of the common stock voted against the amendment. A common

stockholder filed suit to enjoin the amendment. They argued that, under Section 26,

increasing the authorized class A shares adversely affected their rights by diluting

their relative voting power, dividends, and assets distributed upon dissolution.34

The Court looked to Section 13 and its class-based provisions to discern

Section 26’s effect on the common stockholders’ right to a separate class vote.35 The

30
Section 8, Chapter 129, Volume 37 Laws of Delaware.
31
Dickey Clay, 24 A.2d at 320.
32
Id. at 317.
33
Id.
34
Id. at 320. The class A stockholders also argued unsuccessfully that the amendment was unfair,
violated their due process rights under the Delaware and Federal Constitutions, and violated the
Contract Clause of the Federal Constitution. Id. at 320–21.
35
Id. at 319 (adopting the Court of Chancery’s analysis in Starring v. Am. Hair & Felt Corp., 191
A. 887, 890 (Del. Ch. 1937), decree aff’d, 2 A.2d 249 (Del.)) (“The Chancellor, in his effort to
discover, if possible, the meaning of ‘special’ shares, was compelled to refer, and did refer, to the
language of Section 13 authorizing the issuance of various kinds or classes of shares. His
discussion of the language of this section and his conclusions thereupon are particularly apposite
here.”).
13
Court held that the amendment did not adversely affect the “preferences, special

rights or powers” of the common stockholders. According to the Court, it is only

when the “peculiar, or special quality with which [the class shares]” are endowed is

adversely affected that a class vote is required:

The statute, in listing the amendable rights, or rights and powers,
attached to stock, first speaks of preferences. It then speaks of rights,
and employs specific descriptive words, followed by the general and
embracive words, ‘other special.’ Whatever may be said with respect
to the necessity for the use of the word ‘special’, as applied to a right
attached to stock, in view of the prior descriptive words, it is clear
enough that the word was used in the sense of shares having some
unusual or superior quality not possessed by another class of shares . .
. . [T]he relative position of one class of shares in the scheme of
capitalization is not to be confused with rights incident to that class as
compared with other classes of shares . . . . The peculiar, or special,
quality with which they are endowed, and which serves to distinguish
them from shares of another class, remains the same.36

In other words, even though the charter amendment adversely affected the relative

position of the common stock in the corporation’s capital structure, a separate class

vote was not required because the amendment did not “alter or change preferences,

or special rights or powers, given to a class of shares so as to affect adversely the

class.”37

Over two decades after Dickey Clay, Section 26 became Section 242(d)(2) as

part of the 1967 amendments to the DGCL, without material language changes.38

36
Id.
37
Id. at 320.
38
Section 242(d)(2), Subchapter 8, Chapter 50, Volume 56 Laws of Delaware.
14
Contemporaneous commentary from two members of the Delaware Corporation

Law Revision Committee, Samuel Arsht and Walter Stapleton, suggested that the

changes did not deviate from the historical understanding of Section 26.39 Professor

Folk, who had been engaged by the Revision Committee to recommend amendments

to the DGCL, explained that “class voting on amendments adversely affecting class

interests is intended as a safeguard.”40 The Professor recommended expanding

Section 242 to provide a separate “series” vote when less than an entire class is

affected by a proposed amendment.41

In 1969, the General Assembly amended the statute to take on its modern

form, now existing in Section 242(b)(2). The 1969 amendment: moved “[i]f any

proposed amendment would alter or change[,]” to after “the holders of the stock . . .

shall be entitled to vote as a class upon such amendment[;]” changed “preferences,

special rights or powers given to any one or more classes of stock by the certificate

of incorporation” to “powers, preferences, and special rights of the shares of such

class[;]” and added Professor Folk’s suggestion to address series voting. 42 Arsht

and Stapleton stated once again that no major changes occurred, and explained that

39
See S. Samuel Arsht & Walter K. Stapleton, Analysis of the New Delaware Corporation Law, 2
P-H Corp. 311, 321 & 337 (1967).
40
Ernest L. Folk, Review of the Delaware Corporation Law (1965-1967), at 176 (emphasis added)
[hereinafter 1967 Folk Report]; Arsht & Stapleton, supra note 39, at 337.
41
1967 Folk Report at 176–77.
42
Section 21, Chapter 148, Volume 57 Laws of Delaware.
15
the 1969 amendment to Section 242(b)(2) “rewords and reorganizes [the] section in

an attempt to clarify it” and that the statute would operate just “like the prior one.”43

In 1993, the Court of Chancery revisited Section 242(b)(2). In Orban, the

common stockholders argued that they were entitled to a class vote to approve a

recapitalization and merger that involved a new class of preferred stock.44 The new

stock issuance diluted the common stock’s relative voting power. Chancellor Allen

began by noting that “[t]he jurisprudence of class votes in Delaware is not highly

developed.”45 Even so, the Chancellor applied this Court’s decision in Dickey Clay

to interpret Section 242:

The language of [Section 242] makes clear that it affords a right to a
class vote when the proposed amendment adversely affects the peculiar
legal characteristics of that class of stock. The right to vote is not a
peculiar or special characteristic of common stock in the capital
structure of [the company]. All classes of stock share that characteristic
. . . . That this is correct is demonstrated by the important case of
[Dickey Clay]. There the Delaware Supreme Court held that an
amendment increasing the number of authorized preferred shares was
not subject to a class vote by common stock. In so concluding the Court
held that the stock rights that trigger a statutory right to a class vote are

43
S. Samuel Arsht & Walter K. Stapleton, Analysis of the 1969 Amendments to the Delaware
Corporation Law, 2 P-H Corp. 347, 353–54 (1969); see also Robert S. Saunders, et al., Folk on
the Delaware General Corporation Law § 242.03 (7th ed. 2023 supp.) (noting that Dickey Clay’s
construction “still appears applicable, and indeed [S]ection 242(b)(2) codifies the result” (citing
Folk, § 242 (1st ed. 1972)).
44
1993 WL 547187.
45
Id. at *8.
16
 rights (“powers, preferences or special rights”) not shared with other
classes . . . .46

In other words, the charter amendment did not adversely affect the common

stockholders’ ability to cast a vote as provided by the corporate charter and the

DGCL. Instead, it changed only the relative or incidental voting power associated

with their shares.47 And, as with Dickey Clay, the effect of an amendment on an

incidental right did not require a vote because such a right was not a “peculiar, or

special quality” with which such shares were permitted under Section 151(a).

III.

Against this background, we summarize the Companies’ textual argument

explaining how the current DGCL provisions that address class-based voting work

together. Section 102(a)(4) addresses the contents of a certificate of incorporation,

which requires that the “powers, preferences and rights” of class-based stock be set

forth in the corporate charter:

The certificate of incorporation shall also set forth a statement of the
designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, which are permitted
by § 151 of this title in respect of any class or classes of stock or any
series of any class of stock of the corporation . . . .48

46
Id. (emphasis in original); see also Monk v. Imaging Automation, Inc., 805 A.2d 902 (Del. Aug.
29, 2002) (ORDER) (recognizing the analysis of Section 242(b)(2)’s applicability was “clearly
controlled by this Court’s decision in [Dickey Clay]. See also [Orban].”).
47
Orban, 1993 WL 547187 at *8 (“According to this argument the issuance of Series C preferred
reduced the voting power of the common stock below 10% and this adversely affected the common
stock in a foreseeable way . . . .”).
48
8 Del. C. § 102(a)(4) (emphasis added).
17
 Section 102(a)(4) references Section 151, which authorizes class-based stock

and its attributes:

Every corporation may issue 1 or more classes of stock . . . and which
classes or series may have such voting powers, full or limited, or no
voting powers, and such designations, preferences and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, as shall be stated and expressed in the
certificate of incorporation or of any amendment thereto . . . .49

Section 242 addresses amendments to the certificate of incorporation. Section

242(a) authorizes charter amendments and Section 242(b)(1) requires that

stockholders approve charter amendments by the affirmative vote of a majority of

the outstanding stock entitled to vote on the amendment.50 Typically, non-voting

class-based stock would not have a vote on a charter amendment under Section

242(b)(1), unless otherwise required by the DGCL. But Section 242(b)(2) is an

exception which requires a separate class vote of non-voting class shares “if the

amendment would . . . alter or change the powers, preferences, or special rights of

the shares of such class so as to affect them adversely.”

The words “powers,” “preferences,” and “special rights” are unique to these

DGCL statutes.51 Although the “powers, preferences, or special rights” of a class

49
8 Del. C. § 151(a) (emphasis added).
50
8 Del. C. § 242(b)(1).
51
“[R]elated statutes must be read together rather than in isolation . . . .” Richardson v. Bd. of
Cosmetology & Barbering of State, 69 A.3d 353, 357 (Del. 2013) (citing Watson v. Burgan, 610
A.2d 1364, 1368 (Del. 1992); State Farm Mut. Auto. Ins. Co. v. Wagamon, 541 A.2d 557, 560
(Del. 1988)). This is consistent with the goal to give effect to legislative intent when interpreting
a statute. Id.; see Dickey Clay, 24 A.2d at 319 (“The appellant points out that the Chancellor
18
are not defined in Section 242(b)(2), it was not by accident that the same sequence

of words was used in Sections 151(a) and 102(a)(4). Those sections work together

with Section 242(b)(2) to limit the “powers, preferences, or special rights” of a class

to those authorized by Section 151(a) and expressed in the charter under Sections

151(a) and 102(a)(4).52 The “powers, preferences, or special rights” expressed in a

charter are those authorized and required to be set forth in the charter by being stated

in the charter or by a default provision in the DGCL, which is part of every charter

under Section 394.53 The ability to sue directors or officers for duty of care

nowhere indicated that Section 26 of the Corporation Law was involved; and, generally, the effect
of the decision is waived aside by saying that a different section of the law was under consideration.
This is superficial. The [DGCL] must be read and considered in its entirety.”); 2A Norman J.
Singer, Sutherland Statutory Construction § 51:1 (7th ed.); see also Hudson Farms, Inc. v.
McGrellis, 620 A.2d 215, 218 (Del. 1993) (“[I]t is presumed that the General Assembly is aware
of existing law when it acts . . . .”).
52
The Class A Stockholders point out that Section 242(b)(2) does not reference Sections 151(a)
and 102(a)(4) and vice versa. Based on this observation, they contend that reading the statutes
together produces an “unduly – and incorrectly – cramped” interpretation of “powers.” Reply Br.
at 13. The reference in Section 102(a)(4) to Section 151 shows that the statutes are related.
Richardson, 69 A.3d at 357 (“[R]elated statutes must be read together rather than in isolation,
particularly when there is an express reference in one statute to another statute.” (citing Watson,
610 A.2d at 1368)). The lack of a cross reference to Section 242(b)(2) does not create the negative
inference that the statutes are unrelated. The common subject matter, and sequence of words in
Sections 151, 102, and 242(b)(2) demonstrate that the statutes are related. Terex Corp. v. S. Track
& Pump, Inc., 117 A.3d 537, 543 (Del. 2015) (“Statutory construction . . . is a holistic endeavor.
A provision that may seem ambiguous in isolation is often clarified by the remainder of the
statutory scheme—because the same terminology is used elsewhere in a context that makes its
meaning clear . . . .” (citing United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., Ltd.,
484 U.S. 365, 371 (1988)).
53
Answering Br. at 26 (“The Companies argued that ‘powers, preferences, or special rights’ are
class-based rights imbued under Section 151, which are typically stated in the charter or certificate
of designations but can include class-based rights incorporated via gap-filler provisions of the
DGCL . . . .” (citing App. to Answering Br. at B0158)); 8 Del. C. § 394 (“This chapter and all
amendments thereof shall be a part of the charter or certificate of incorporation of every
corporation except so far as the same are inapplicable and inappropriate to the objects of the
corporation.”); See Dickey Clay, 24 A.2d at 321 (“[T]here is impliedly written into every corporate
19
violations is an attribute of the Companies’ stock, but not a power, preference, or

special right of the Class A common stock under Section 242(b)(2).

A.

On appeal, the Class A Stockholders have abandoned their 1969 amendment

argument but still disagree with the Companies’ textual approach. They argue that

we should limit our analysis to dictionary definitions of “powers” which are broad

enough to include the power to sue officers for damages for duty of care violations.

Stated plainly, they contend that we should pluck a single word from the statute,

apply a generic dictionary definition to that word, and put on blinders to the rest of

the words in the statute and the statute’s place in the DGCL.

While dictionary definitions can help discern the meaning of words in a

statute, they can also be inconclusive and subject to selection bias.54 For example,

charter as a constituent part thereof the pertinent provisions of the State Constitution and statutes.
Specifically, [Section 394’s predecessor] declares that all amendments to the law shall be a part of
the charter of every corporation formed under it except in so far as they are inapplicable or
inappropriate to the objects of such corporation.”).
54
See, e.g., Freeman v. X-Ray Assocs., P.A., 3 A.3d 224, 228 (Del. 2010) (refusing to rely on one
of three dictionary definitions, and instead applying other principles of statutory interpretation).
As the Court of Chancery has stated, while referencing commentary from a distinguished jurist:
“a court cannot read words in isolation.” In re P3 Health Grp. Hldgs., LLC, 282 A.3d 1054, 1066
(Del. Ch. 2022); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17
Harv. J.L. & Pub. Pol’y 61, 67 (1994) (“In interesting cases, meaning is not ‘plain’; it must be
imputed; and the choice among meanings must have a footing more solid than a dictionary—which
is a museum of words, an historical catalog rather than a means to decode the work of
legislatures.”); A. Raymond Randolph, Dictionaries, Plain Meaning, and Context in Statutory
Interpretation, 17 Harv. J.L. & Pub. Pol’y 71, 73–74 (1994) (“A statute, however, cannot be
understood merely by understanding the words in it. Judge Easterbrook thinks dictionaries are like
‘word museums.’ I think they are also like ‘word zoos.’ One can observe an animal’s features in
20
the Class A Stockholders rely on one definition of “powers” in Black’s Law

Dictionary – “[t]he ability to act or not act.”55 At summary judgment, the Companies

countered with another dictionary definition – “[d]ominance, control, or influence

over another.”56 They also included the complete text of the Class A Stockholder’s

definition: “The ability to act or not act; esp., a person’s capacity for acting in such

a manner as to control someone else’s responses.”57 The dictionary definitions

offered by the parties lack context and point in different directions.

The Class A Stockholders’ stilted approach to statutory interpretation ignores

the context in which the word “powers” is used and how Section 242(b)(2) interacts

with other sections of the DGCL employing the same words.58 As the Companies

have argued, “powers” must be read together with “preferences,” “special rights,”

and “shares of such class,” and the other DGCL sections addressing class-based

powers. The word “powers” in Section 242(b)(2) refers to specific class powers

the zoo, but one still cannot be sure how the animal will behave in its native surroundings. The
same is true of words in a text.”).
55
Opening Br. at 25–26 (citing Power, Black’s Law Dictionary (11th ed. 2019); Power, Merriam-
Webster (last visited Nov. 29, 2022), https://www.merriam-webster.com/dictionary/power;
Strougo v. Hollander, 111 A.3d 590, 595 n.21 (Del. Ch. 2015)).
56
Defs.’ Opening MSJ at 26 (citing Power, Black’s Law Dictionary (11th ed. 2019)).
57
Id.
58
See Osgood v. State, 2023 WL 8532754, at *4 (Del. 2023) (“[W]ords in a statute should be given
meaning through the context in which they are used.”); Agar v. Judy, 151 A.3d 456, 473 (Del. Ch.
2017) (stating that words must “‘be interpreted in the context of words surrounding them’”
(quoting Zimmerman v. Crothall, 2012 WL 707238, at *7 (Del. Ch. Mar. 27, 2012)).
21
under Section 151(a), made express in the corporate charter as required by Section

102, and not to general powers incidental to stock ownership.

The Class A Stockholders also point to other DGCL provisions where

“power” is used to describe the authority to file suit. They cite Section 122, which

states “[e]very corporation created under this chapter shall have the power to: . . .

[s]ue and be sued in all courts . . . ;”59 Section 279, which grants trustees and

receivers of dissolved corporations the “power to prosecute and defend;”60 and

Section 291, which grants receivers of insolvent corporations the “power to

prosecute and defend.”61

Those statutes show that the ability to sue is a power in certain contexts, but

none are useful in defining the “powers . . . of the shares of such class.” As the Court

of Chancery noted in its transcript ruling, Sections 122, 279, and 291 all speak to a

different subject matter than stockholder powers.62 Worse for the Class A

Stockholders’ argument is that all three statutes explicitly define the ability to sue as

a “power” within the context of their own statute, whereas Section 242(b)(2) does

not. At most, these statutes show that the ability to sue is a “power” in certain

59
8 Del C. § 122.
60
8 Del C. § 279.
61
8 Del C. § 291.
62
Decision at 23.
22
contexts, but as the Court of Chancery determined correctly, not in the context of the

“the shares of such class.”63

In another argument, the Class A Stockholders claim that the Companies’

textual argument results in an “incoherent” interpretation of the DGCL. Their main

point is that an “express rights” reading – meaning a separate class vote is required

only when corporate action adversely affects a class-based “power” stated in the

charter – leads to unequal treatment of identical rights, turning on whether the right

is stated in the charter or is a gap-filling power stated in the DGCL.64

As the Court of Chancery recognized, however, Section 394 makes the DGCL

a part of the certificate of incorporation of every Delaware corporation.65 Certain

powers or rights, if unstated in the charter, are determined by default provisions in

the DGCL – for example, Section 212(a) of the DGCL, where a share carries voting

63
The Class A Stockholders also rely on Section 121(a), which states that, “[i]n addition to the
powers enumerated in § 122,” the “corporation, its officers, directors and stockholders” can
exercise the powers granted by the DGCL, the charter, and “powers incidental hereto.” They say
that the ability to sue for breaches of fiduciary duty to “police corporate misconduct” is a
fundamental power of the stock – and that power is subject to Section 242(b)(2)’s voting
requirements. But it is not a “power[] . . . of the shares of such class.” Rather, it is a power that
is – as Section 121 states – “incidental” to the status of being a stockholder, irrespective of the
class of stock held.
64
Opening Br. at 29.
65
Decision at 61–64. See 8 Del. C. § 394 (“This chapter and all amendments thereof shall be a
part of the charter or certificate of incorporation of every corporation except so far as the same are
inapplicable and inappropriate to the objects of the corporation.”); STAAR Surgical Co. v.
Waggoner, 588 A.2d 1130, 1136 (Del. 1991) (“[I]t is a basic concept that the General Corporation
Law is a part of the certificate of incorporation of every Delaware company.”). The court held
that whether or not the gap-filler provisions of the DGCL were included in the express rights
reading of Section 242(b)(2), the power to sue would still not be one of the “powers, preferences,
or special rights of the shares of such class.” Decision at 62.
23
power equal to one vote per share.66 Class-based powers or rights incorporated

through the DGCL’s default provisions are also expressed in the charter for purposes

of Section 242(b)(2).

Further, under Section 151(g), a board may issue shares of preferred stock in

a class or in a series of a class through a certificate of designations. Once the

certificate of designations is filed with the Secretary of State as required by Section

103, it amends and becomes a part of the certificate of incorporation.67 The terms

of the certificate of designations are also expressed in the charter under Section

102(a)(4).68

The Companies’ textual argument adheres to how Section 242(b)(2) operates

as an exception to Section 242(b)(1). The Class A Stockholders’ rigid interpretation

of “powers” upsets the balance between Sections 242(b)(1) and (2). Section

242(b)(2) is intended as a “safeguard” to protect the powers, preferences and special

66
8 Del. C. § 212(a) (“Unless otherwise provided in the certificate of incorporation and subject to
§ 213 of this title, each stockholder shall be entitled to 1 vote for each share of capital stock held
by such stockholder.”).
67
Matulich v. Aegis Commc’ns Grp., Inc., 942 A.2d 596, 600 (Del. 2008) (“Accordingly, the
special rights and limitations of preferred stock are created by the corporate charter or a certificate
of designation, which acts as an amendment to a certificate of incorporation.”); Kaiser Aluminum
Corp. v. Matheson, 681 A.2d 392, 394 n.3 (Del. 1996) (“When the Certificate of Designations
became effective in February of 1994, it had the effect of amending the Certificate of Incorporation
so that the rights of the preferred stockholders fixed by the Certificate became part of the
Certificate of Incorporation” (citing 8 Del. C. §§ 102(a)(4); 151(g))).
68
8 Del. C. § 102(a)(4) (“The certificate of incorporation shall also set forth a statement of the
designations . . . which are permitted by § 151 of this title . . . .”); 8 Del. C. § 151(g).
24
rights authorized by Section 151 and expressed in the charter. It is not a broad grant

of the right to vote on any amendment affecting any attribute of stock ownership.69

B.

According to the Class A Stockholders, Dickey Clay “merely [held] that the

relative position of stock in the capital structure is not a ‘power, preference, or

special right’ under Section 242(b)(2), so an adverse effect on such position does not

trigger a class vote.”70 In other words, “adverse changes to the ‘relative position’ of

one class in the capital structure through a charter amendment authorizing the

issuance of additional, superior shares does not require a separate vote of the inferior

class.”71 They also contend that the Court of Chancery “subordinated its own logic

and reasoning” when it found that Dickey Clay and Orban dictated the outcome.

But a court’s ruling is rarely limited to the specific facts before it.72 Dickey

Clay held that “[t]he peculiar, or special, quality with which [the class shares] are

69
1967 Folk Report at 176; Dickey Clay, 24 A.2d at 322 (“The right of veto by class vote was
never conferred on the common shares, and this is not at all surprising in view of their origin. What
the appellant would have the Court to do is to reconstruct the contract by giving to the common
shares a right never intended to be given.”).
70
Opening Br. at 9.
71
Id. at 34.
72
One academic paper describes “confining a case to its facts” as a doctrinal workaround to stare
decisis, where a court can “overrule everything a decision stands for except for its precise result.”
Daniel B. Rice & Jack Boeglin, Confining Cases to Their Facts, 105 VA. L. REV. 865 (2019). And
“[o]nce a case has been confined to its facts, the operative question becomes whether a new case
is factually distinguishable from it in any respect.” Id. at 870. Ordinary methods of treating
precedent do not call upon courts to engage in “purely fact-bound adjudication.” Id. We promote
“stability in our DGCL.” Stream TV Networks, Inc. v. SeeCubic, Inc., 279 A.3d 323, 354 (Del.
2022). Interpreting precedent solely on the facts, rather than the reasoning stated by this Court,
undermines the predictability of our corporate law. Acct. v. Hilton Hotels Corp., 780 A.2d 245,
25
endowed, and which serves to distinguish them from shares of another class, remains

the same.”73 In Orban, the Court of Chancery held that Section 242(b)(2) “makes

clear that it affords a right to a class vote when the proposed amendment adversely

affects the peculiar legal characteristics of that class of stock.”74 Those cases gave

meaning to the phrase “powers, preferences, or special rights” to be applied in future

cases.75 And the “peculiar, or special quality” of which class shares are endowed

are the powers, preferences, and special rights which are attributed to and define the

class under Section 151.76

For three quarters of a century, Dickey Clay has stood for two points: 1) that

rights incidental to stock ownership are not a peculiar characteristic of the shares of

a class of stock, and 2) that Section 242(b)(2) should be read considering other

248 (Del. 2001) (“[S]tare decisis finds ready application in Delaware corporate law.”); Speiser v.
Baker, 525 A.2d 1001, 1008 (Del. Ch. Mar. 19, 1987) (“Delaware courts, when called upon to
construe the technical and carefully drafted provisions of our statutory corporation law, do so with
a sensitivity to the importance of the predictability of that law.”).
73
Dickey Clay, 24 A.2d at 318–19 (emphasis added).
74
1993 WL 547187, at *8 (emphasis in original).
75
This Court in Dickey Clay, and the Court of Chancery in Orban, based their decisions on a prior
iteration of Section 242(b)(2). That circumstance does not render the “peculiar, or special”
limitation as dictum. The rule is not, as the Class A Stockholders would have it, whether some
hypothetically narrower holding would result in the same outcome of the case, but rather whether
the actual holding had an “effect on the outcome of [the] case.” In re MFW S’holders Litig., 67
A.3d 496, 521 (Del. Ch. 2013) (citing Brown v. United Water Delaware, Inc., 3 A.3d 272, 277
(Del. 2010)).
76
Dickey Clay, 24 A.2d at 319 (approving of the use of Section 151’s predecessor, Section 13,
when searching for the meaning of “special” shares).
26
provisions of the DGCL. The Court of Chancery faithfully applied Dickey Clay, and

the Class A Stockholders have not asked us to overrule it.77

C.

At summary judgment, the Companies identified nine public multi-class

corporations that adopted director exculpation charter amendments shortly after

Section 102(b)(7) was enacted.78 Eight of those corporations did not seek a separate

class vote, and the ninth stated that such a vote was not required, though it sought

one for the amendment because it was presented to stockholders in a suite of other

charter amendments.79 The Court of Chancery determined that this evidence fit its

understanding that “[i]n the nearly 40 years since 1986 and the adoption of Section

102(b)(7) for directors, no one has taken the position until this case that an

exculpation amendment requires a class vote.”80

Although the Class A Stockholders argue otherwise, the Court of Chancery

did not make practitioner experience central to its ruling. Instead, it simply observed

77
The Class A Stockholders did not ask the Court of Chancery to assess whether equitable
considerations should be part of the analysis. See Schnell v. Chris-Craft Indus., Inc., 285 A.2d
437, 439 (Del. 1971) (“[I]nequitable action does not become permissible simply because it is
legally possible.”).
78
Defs.’ Opening MSJ at 36–38.
79
Id.
80
Decision at 67–68 (“Speaking for myself, I never previously thought that an exculpation
amendment required a class vote.”).
27
that a statutory interpretation which deviated from the historical understanding

would conflict with the stability of our corporate law.81

IV.

The judgment of the Court of Chancery is affirmed.

81
Stream TV Networks, Inc., 279 A.3d at 353–54 (“‘Our General Assembly has [ ] recognized the
need to maintain balance, efficiency, fairness, and predictability in protecting the legitimate
interests of all stakeholders, and to ensure that the laws do not impose unnecessary costs on
Delaware entities.’” (quoting Salzberg v. Sciabacucchi, 227 A.3d 102, 136 (Del. 2020)).

28
Multi-Case Filing Detail: The document above has been filed
and/or served into multiple cases, see the details below including
the case number and name.

Transaction Details

Court: DE Supreme Court Document Type: Opinion
Document Title: Opinion decided on 1-
17-24 by Seitz, CJ. Revised: 1-25-24.
Transaction ID: 71876477 Upon appeal from the Court of Chancery.
AFFIRMED. (CJS, KLV, GFT, AML, NCG).
(dmd)
Submitted Date & Time: Jan 25 2024 2:30PM

Case Details

Case Number Case Name
120,2023C In re Fox Corporation/Snap Inc. Section 242 Litigation
121,2023C In re Fox Corporation/Snap Inc. Section 242 Litigation