In the case of Biolase v. Oracle Partners L.P., No. 270, 2014 (June 12, 2014), the Delaware Supreme Court confirmed that a board member of a Delaware corporation may resign orally, without providing a written resignation.

8 Del. C. § 141(b) provides in pertinent part:

Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation. A resignation is effective when the resignation is delivered unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events.

The Supreme Court found that the language of this statute is permissive, such that a writing is not required for a board member to resign under Section 141(b).

It is worth noting that the Court also considered the underlying corporation’s bylaws, which contained similar language to Section 141(b).  Had the bylaws of the corporation required the resignation to be in writing, then it is likely that the Court would have reached a different conclusion.

If you would like to speak to a litigator in Fox Rothschild’s Delaware office, please reach out to Sid Liebesman (302) 622-4237 or Seth Niederman (302) 622-4238.