Delaware Won’t Fully Adopt the ESG Agenda

null Nov. 28, 2023 5:27 pm ETA view of downtown Wilmington, Del. Photo: Getty Images/iStockphotoWilliam Barr and Jonathan Berry rightly warn that Delaware, the No. 1 state of incorporation for big companies, risks losing that valuable position by succumbing to the antibusiness pressures of the ESG movement (“Delaware is Trying Hard to Drive Away Corporations,” Cross Country, Nov. 25). But they overstate the extent to which Delaware has deviated from its traditional focus on shareholder interests and freedom of contract. Delaware’s jurisprudence remains shareholder-centric and hasn’t been remade to turn business executives into “stakeholder” champions. Recent Delaware cases have invoked director-oversight duties to promote worker or product safety, but only as a means of maximizing shareholder value given that toxic workplaces or products hurt shareholders. Delaware courts excused corporate directors for failure to prevent cyberattacks and other ills when no cost-effective oversight co