Heightened Means Heightened: Chancery’s First Read of SB 21’s New Presumption Shuts Down Demand Futility

In Ayers v. Foley (available here), the Delaware Court of Chancery recently became the first court to interpret Section 144(d)(2) of the Delaware General Corporation Law (DGCL), the provision added by Senate Bill 21 (SB 21) in 2025 that affords a “heightened” presumption of disinterestedness to directors of listed companies whom the board has determined to be independent under stock exchange rules. Vice Chancellor Will held that the heightened presumption is not confined to Section 144’s safe harbors and applies with full force to the demand futility analysis under Court of Chancery Rule 23.1, and that overcoming it requires “substantial and particularized facts” of sufficient qualitative significance.

The decision illustrates the meaningful protections the amended statute now affords disinterested directors at the pleading stage, while confirming that directors who award compensation to themselves remain exposed to entire fairness review.

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