This synopsis was prepared by Chauna Abner, a corporate and commercial litigation partner at Lewis Brisbois.
In Freiberg v. Xonar Technology Inc., C.A. No. 2026-0093-KSJM (Del. Ch. Sep. 15, 2026), Chancellor McCormick rejected a director’s Section 225 challenge to his removal based on written consents in lieu of a shareholder meeting after a paper trial.
In a nutshell, stockholders executed written consents to remove Gregory Freiberg from the Company’s board, and prompt Section 228(e) notice was given the next day. Freiberg filed a Section 225 action contending that the cap table was wrong and the written consents lacked majority support.
In response to an objection to the initial written consents, about three weeks after the original written consents were executed, the Company obtained two additional consents from Brian and Jeff McFadden (“McFadden Consents”). The Court held that these consents were valid.
The Issues
To keep the summary proceeding on track, the Court entered an order adopting the Company’s stipulations and narrowing the issues for trial to two: (1) whether the court could count the later – obtained McFadden Consents, and (2) what methodology should apply to compute Freiberg’s share ownership.
The Company stipulated to key facts, consistent with Section 225 being an expedited proceeding on narrow issues.
Key Holdings & Reasoning
The Court held that the McFadden Consents were valid. Freiberg could not prove that his removal from the Board was invalid. Thus, the Court entered judgment for the Company, without needing to reach the share‑ownership methodology question.
Counting later consents: The Court held that Section 228 of the DGCL permits stockholder action by multiple written consents signed on different dates within 60 days, and the action becomes effective upon delivery of the last consent needed to reach a majority. The later-obtained McFadden Consents were within the 60‑day window and could be aggregated with the original consents.
Retroactivity challenge: The Court rejected the argument that the McFadden Consents were “backdated,” reasoning that the consents specified no effective date, and, in any event, under Section 228 the effective date is when the final requisite consent is delivered. Therefore, the Court found that there was no improper retroactive application of the consents.
Fiduciary‑breach solicitation theory: The Court declined to set aside the McFadden Consents on equitable grounds, reasoning that Freiberg failed to prove any material misstatement or omission in the solicitation since the company’s communications disclosed that removal had already been effected and that Freiberg was challenging it, and the McFaddens did not testify that any undisclosed fact would have been material to their decision.
The Court also found no improper inducement. The Court reasoned that texts about updates or visits did not amount to bribery, and the record reflected the McFaddens’ long‑standing involvement and independent engagement.
Practical Takeaways
- Section 228 consents can be collected over time within the 60‑day window and aggregated.
- Labeling a consent with an “effective date” does not override Section 228’s statutory mechanics; the operative date is when the last necessary consent is delivered.
- Section 225 remains a narrow, expedited vehicle focused on the validity of elections/removals; the Court will cabin discovery and accept targeted stipulations to preserve summary character.
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