The Fiduciary's Dilemma After Solent Marine

A director who dissents has always had two duties in tension: the duty to speak, and the duty — once outvoted — to keep the board’s confidence. The Court of Chancery’s opinion in Solent Marine does not resolve that tension. It sharpens it.

The court’s guidance can be reduced to three propositions. First, dissent must be contemporaneous: reservations recorded after a transaction fails are worth little more than the paper they were typed on. Second, dissent must be specific — a general unease, however sincerely felt, is not a record. Third, and least comfortably, dissent does not excuse disengagement: the director who votes no must still attend, still read, and still improve the deal they opposed.

For the boards we counsel, the practical translation is a minute-book discipline: reservations stated in the room, recorded in the minutes, and revisited at the next meeting — not preserved in side letters or, worse, in email.

The dissenting director who follows that discipline is, in our experience, the one the court later credits. The one who saved his objection for the deposition is the one who wishes he had called counsel earlier.