unrelated third party without sufficient exploration of the underlying factual
framework or available alternatives. 488 A.2d 585, 868-69 (Del. 1985).
The Van Gorkom decision sent shockwaves through the corporate community, threatened the wealth-producing risk-taking that the business judgment rule is intended to promote, and exacerbated a crisis in directors and officers insurance. The Delaware General Assembly promptly responded by enacting Section 102(b)(7) of the General Corporation Law, which permits corporations to include a provision in their charter limiting or eliminating directors’ liability for monetary damages for breaches of the fiduciary duty of care, but not breaches of the duty of loyalty or for “acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law.”
Following the enactment of Section 102(b)(7) and outside of the context of divided loyalties, changes in control, defensive measures, or transactions involving a controlling stockholder, directors again felt secure in knowing that they could engage in risk-taking that may, in hindsight, be viewed as “stupid” “egregious” or “irrational”, so long as a majority of the board was both disinterested and independent. See Aronson, 473 A.2d at 815 and In re Caremark Int’l Deriv. Litig., 698 A.2d 959 (Del. Ch. 1996); Gagliardi v. TriFoods Int’l Inc., 683 A.2d 1049, 1052 (Del. Ch. 1996).
At about the time of the Enron and WorldCom debacles, the Chancellor issued an opinion in the Ovitz/Walt Disney matter that many worried put directors of Delaware corporations in the cross-hairs for personal liability. In In re The Walt Disney Company Derivative Litigation, 825 A.2d 275 (Del. Ch. 2003) (“Disney