Last Friday, California headquartered Affirm Holdings, Inc. filed preliminary proxy materials for a special meeting of stockholders to consider a proposal to reincorporate from Delaware to Nevada. Affirm is joining several other well-known and non-so-well known defectors to the Silver State. In proposing the move, Affirm cites the changing litigation landscape in Delaware:
We have observed that the legal environment in Delaware has changed, with a greater frequency of litigation activity brought by well-funded firms who frequently have a significant financial interest in the outcome of the litigation. This has resulted in a less predictable and less stable landscape and body of case law in Delaware, particularly for companies, like ours, with an executive who is also a significant stockholder.
Delaware's recent and highly controversial amendments to the General Corporation Law was not enough to keep Affirm in Delaware:
We have considered the amendments to the DGCL [Delaware General Corporation Law] that took effect on March 25, 2025 concerning transactions involving a conflict of interest on the part of directors, officers or controlling stockholders and stockholders’ inspection rights. We have also considered the related Senate Concurrent Resolution requesting evaluation of the approach to plaintiffs’ attorneys fee awards in Delaware, the outcome of which is not yet known. Delaware law could continue to evolve and adapt in a way that addresses some of the concerns we have identified, but the effect of these developments is not yet known and the amendments will be subject to judicial interpretation.
"The order is rapidly fadin'
And the first one now
Will later be last
For the times they are a-changin'"*
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*Bob Dylan, The Times The Are A Changin' (quoting Matthew 20:16 in part).
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