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David J. Berger
Partner
Litigation
Palo Alto
San Francisco

D650-320-4901

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  • Corporate Governance and Activism Expertise

    David represents directors, enterprises, and stockholders on fiduciary duty and corporate control issues.

  • Trial and Appellate Litigation Experience

    David has served as lead trial and/or appellate counsel in high-profile M&A and securities cases.

  • Respected Among Corporate Governance Colleagues

    A Fellow of the American College of Governance Counsel and honored as a "BTI Client Service All-Star."

  • Business and Community Leadership Roles

    David serves as a director on several business and community organization boards, including the Long Term Stock Exchange, the San Francisco Symphony, the Wildlife Conservation Network, and KDFC Classical Radio.

David Berger specializes in corporate governance, M&A and securities litigation as well as rapid response shareholder activism and corporate governance risk oversight. David’s practice is an unusual blend of corporate governance advisory work and litigation, and he is nationally recognized for his expertise in both the boardroom and the courtroom. David also represents directors and companies in internal investigations and public companies on disclosure and SEC proceedings.

David has served as lead counsel in many of the most significant governance, M&A and securities litigations over the last 25 years.  During this time David has represented many leading technology and other companies in a variety of cases, including Alphabet (Google), Hewlett-Packard, Trade Desk, Genentech, Dropbox, Box, TD Ameritrade, Copart, Lumentum, Coherent, and Chevron. In addition, David represents many leading investment banks and private equity firms, including Morgan Stanley, SilverLake, TPG, Oak Hill, Francisco Partners, and Qatalyst Partners.

David is a senior fellow at NYU’s Center for Corporate Governance and Finance and is a visiting professor at NYU Law School. David previously taught M&A Litigation and was a visiting Fellow in the Program on Corporate Governance at Harvard Law School and has been a visiting lecturer at a number of other leading law schools, including Duke, Stanford, Hebrew University, and Tel Aviv University, among others.

David is an advisor to the American Law Institute’s Restatement on Corporate Governance project. He is a member of the American College of Governance Counsel, and previously served as counsel to the NYSE’s Commission on Corporate Governance as well as the NYSE’s Proxy Working Group. David writes frequently on corporate law and governance matters, and his articles have appeared in a number of scholarly journals and business publications. He also regularly speaks at corporate governance and investor forums, including frequently addressing governance issues faced by Silicon Valley companies.

David has been at Wilson Sonsini since 1989. Among other leadership roles, he has been a member of the firm’s board of directors and served as chair of the Policy Committee and chair of the firm’s Pro Bono Committee.

David is a director of the Long-Term Stock Exchange, where he chairs the Nominating & Governance Committee.  He also serves on many civic boards, including the Aspen Institute's Business and Society Program board of advisors and the San Francisco Symphony, where he is a member of the audit and finance committees. David also has an active pro bono practice, including serving as lead trial counsel for a variety of public interest groups.

David previously served on the board of directors of the California Culinary Academy (NASDAQ:COOK), including serving on the company's transactions committee as well as on the advisory board of Faurecia, a global leader in manufacturing auto parts based in Paris and served as general counsel to the Super Bowl 50 Host Committee.

Experience

David Berger specializes in corporate governance, M&A and securities litigation as well as rapid response shareholder activism and corporate governance risk oversight. David’s practice is an unusual blend of corporate governance advisory work and litigation, and he is nationally recognized for his expertise in both the boardroom and the courtroom. David also represents directors and companies in internal investigations and public companies on disclosure and SEC proceedings.

David has served as lead counsel in many of the most significant governance, M&A and securities litigations over the last 25 years.  During this time David has represented many leading technology and other companies in a variety of cases, including Alphabet (Google), Hewlett-Packard, Trade Desk, Genentech, Dropbox, Box, TD Ameritrade, Copart, Lumentum, Coherent, and Chevron. In addition, David represents many leading investment banks and private equity firms, including Morgan Stanley, SilverLake, TPG, Oak Hill, Francisco Partners, and Qatalyst Partners.

David is a senior fellow at NYU’s Center for Corporate Governance and Finance and is a visiting professor at NYU Law School. David previously taught M&A Litigation and was a visiting Fellow in the Program on Corporate Governance at Harvard Law School and has been a visiting lecturer at a number of other leading law schools, including Duke, Stanford, Hebrew University, and Tel Aviv University, among others.

David is an advisor to the American Law Institute’s Restatement on Corporate Governance project. He is a member of the American College of Governance Counsel, and previously served as counsel to the NYSE’s Commission on Corporate Governance as well as the NYSE’s Proxy Working Group. David writes frequently on corporate law and governance matters, and his articles have appeared in a number of scholarly journals and business publications. He also regularly speaks at corporate governance and investor forums, including frequently addressing governance issues faced by Silicon Valley companies.

David has been at Wilson Sonsini since 1989. Among other leadership roles, he has been a member of the firm’s board of directors and served as chair of the Policy Committee and chair of the firm’s Pro Bono Committee.

David is a director of the Long-Term Stock Exchange, where he chairs the Nominating & Governance Committee.  He also serves on many civic boards, including the Aspen Institute's Business and Society Program board of advisors and the San Francisco Symphony, where he is a member of the audit and finance committees. David also has an active pro bono practice, including serving as lead trial counsel for a variety of public interest groups.

David previously served on the board of directors of the California Culinary Academy (NASDAQ:COOK), including serving on the company's transactions committee as well as on the advisory board of Faurecia, a global leader in manufacturing auto parts based in Paris and served as general counsel to the Super Bowl 50 Host Committee.

Focus Areas
Recent Insights
Client Advisories
Delaware's Status as the Favored Corporate Home: Reflections and Considerations
In recent months, a conversation has emerged as to whether Delaware should remain the favored state of incorporation for business entities. Indeed, many of our clients have asked us whether they should remain in Delaware or choose Delaware as the state of incorporation for their new ventures. In this discussion, we provide our reflections on that question and various factors that entrepreneurs, investors, and companies should consider when weighing incorporation in Delaware against incorporation in another state. 

The Reliance on Delaware Compared to Other States

The sheer number of entities formed in Delaware reflects its dominance in this area. In 2022, more than 313,650 entities were formed in the state of Delaware, resulting in more than 1.9 million entities total in Delaware.[1] Delaware also continues to be the state of incorporation for nearly 68.2 percent of the Fortune 500, 65 percent of the S&P 500,[2] and approximately 79 percent of all U.S. initial public offerings in calendar-year 2022.[3] Of course, those numbers reflect that a substantial portion of entities are incorporated elsewhere, both within and outside of the United States. The Chief Justice of Delaware’s Supreme Court has noted that business entities indirectly or directly generate about a third of the state’s revenue.[4] 

It also bears noting that Delaware has not always held the distinction as the favored destination for incorporations. Prior to the early 1900s, New Jersey had been the most significant state for incorporations.[5] Aware of New Jersey’s early success and in an effort to encourage corporations to domicile in Delaware, Delaware amended its constitution in 1897 to permit incorporation under general law instead of by special legislative mandate, and in 1899 adopted a general corporation law modeled largely after New Jersey’s approach.[6] These developments, in addition to the written opinions issued by Delaware’s Court of Chancery, helped make Delaware a natural home for corporations looking to leave New Jersey after that state adopted more restrictive laws related to corporations and trusts in 1913.[7]

A corporation’s state of incorporation is significant because that state’s laws govern the corporation’s internal corporate governance and inform how judges will review the conduct of directors and officers in stockholder litigation. As will be discussed in greater detail below, there are a number of factors that have made Delaware a favored state of incorporation for over a century.[8]

Why Is Delaware in Question?

Of course, it is critical to understand why some have called Delaware’s dominance into question. Some of the doubt has come from famous sources, such as Elon Musk’s much-publicized X (formerly Twitter) post stating, “Never incorporate your company in the state of Delaware” after the Delaware Court of Chancery rescinded his compensation package at Tesla.[9] Tesla’s stockholders are now expected to vote on the conversion of Tesla from a Delaware corporation to a Texas corporation at the company’s annual stockholder meeting on June 13, 2024.[10] In the conversations that we have had with clients, businesspeople, and others in the corporate bar, we have heard the following reasons given for reconsidering incorporation in Delaware:
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Alerts
Delaware Court of Chancery Addresses Fiduciary Duty Claims Arising from Reincorporation to Nevada
On February 20, 2024, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery issued an opinion refusing to dismiss stockholder claims challenging the reincorporation of TripAdvisor from Delaware to Nevada and determining that the entire fairness standard of judicial review, rather than the business judgment rule, applied to the decision to reincorporate. The essence of the court’s determination was that the purpose of the reincorporation was to reduce stockholder litigation risks for its fiduciaries and that a reduction in the litigation rights of stockholders in a controlled company creates a non-ratable benefit for the controller. Accordingly, the standard of review governing the transaction is entire fairness unless the company uses some type of procedural protections, such as approval by an independent board committee and/or minority stockholders, to lower the standard of review by simulating an arm’s-length negotiation. Because no such steps were taken here, the court denied the defendants’ motion to dismiss and allowed the case to proceed under the entire fairness standard.
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Recent Events
Affiliated Programs
What’s AI Got to Do with It: Should Companies Rethink their Corporate Governance Structure?
Join us for a fireside chat that explores whether companies should rethink their traditional corporate governance structures in light of evolving AI technologies. We will examine the role of shareholder primacy, the rise of dual-class stock in Silicon Valley, and the impact of AI on future governance models. This session will provide insights for directors and legal professionals advising companies on long-term strategy and decision-making.
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Affiliated Programs
Rome Conference on AI, Ethics, and the Future of Corporate Governance
Italian Prime Minister Giorgia Meloni recently emphasized the transformative potential of Artificial Intelligence (AI), positioning it as "the greatest intellectual, practical, and anthropological challenge of the era." We stand on the brink of a revolution poised to reshape the very fabric of our industries and societies. Recognising this, during Italy’s Presidency of the G7 in 2024, the Prime Minister has said that one of her top objectives is to develop dialogue between public and private stakeholders on AI because “public and private interests, [though] both legitimate, are not always overlapping and sometimes are at odds.”
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