Delaware Supreme Court affirms that minority stockholder is not a fiduciary subject to Brophy derivative claims merely by access to nonpublic information

On March 27, 2026, the Delaware Supreme Court affirmed the Court of Chancery’s decision in Witmer v. Armistice Cap., LLC, 344 A.3d 632 (Del. Ch. 2025) aff’d, No. 381, 2025, 2026 WL 849994 (Del. Mar. 27, 2026), dismissing a stockholder’s derivative action against Armistice Capital LLC and Armistice Master Fund Ltd. (together, Armistice). The complaint alleged, among other things, that Armistice, a significant but minority stockholder with board representation, breached fiduciary duties... By: Herbert Smith Freehills Kramer