The Devil Is in the Details: A Litigator’s 5 Tips for Drafting Board Minutes
Recent Delaware cases continue to emphasize that well-drafted board minutes are crucial to surviving and defeating challenges from shareholders in derivative and securities class actions. Although corporate counsel or the corporate secretary may be responsible for drafting board minutes as a matter of good corporate governance, the board minutes may well become the center of litigation. Litigation involving these board minutes may not only be around the corner, but may also proceed years later after memories have faded or directors or management have left the company. Against the backdrop of reviewing millions of documents in litigation involving the company or its board of directors, litigators often face the herculean task of defending inaccurate or inconsistent board minutes, which highlights the importance of well-drafted minutes in increasing the likelihood of success in the courtroom. As litigators who practice in securities and derivative litigation, we have a unique perspective regarding the benefits of a well-drafted record, the hurdles raised in litigation by poorly drafted minutes, and certain nuances of which corporate counsel and directors should be aware.