Robert S. Reder & Noah Nance | 77 Vand. L. Rev. En Banc 69

“It is well established,” under Delaware law, “that stockholders have a fundamental right to ‘vote for the directors that the s[tock]holder[s] want [ ] to oversee the firm.’ ” Sternlicht v. Hernandez, 2023 WL 3991642 (Del. Ch. June 14, 2023) (“Sternlicht”). Moreover, “[s]ubsumed within that fundamental right to vote is the right to nom- inate a competing slate.” Despite this recognition, the Delaware Gen- eral Corporation Law “is silent as to how a stockholder may propose a nominee for election.” Strategic Inv. Opportunities LLC v. Lee Enters., Inc., 2022 WL 453607 (Del. Ch. Feb. 14, 2022) (“Strategic Investment Opportunities”). “[T]o fill this gap,” public companies have adopted so- called advance notice bylaws.

Generally, advance notice bylaws require stockholders to pro- vide the corporation with prior notice of their intention to nominate director candidates, together with detailed information about their nominees, their stockholdings, and other relationships with the corporation. As such, “advance notice bylaws have become ‘commonplace’ tools for public companies to ensure ‘orderly meetings and election contests.’ ”

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AUTHORS:

Robert S. Reder

Noah Nance