## Facts

- Maxwell Shoe Company, Inc. was a Delaware corporation whose certificate of incorporation fixed the record date for stockholder action by written consent as the first date a signed consent is delivered to the corporation.
- Jones Apparel Group, Inc., a hostile bidder, initiated a written-consent solicitation to remove and replace Maxwell’s board.
- Maxwell’s board purported to set an earlier record date (March 25, 2004) for the consent solicitation under 8 Del. C. § 213(b).
- The first signed consent was delivered to Maxwell on April 21, 2004.
- Jones filed an expedited Court of Chancery action seeking a declaration that the charter provision controlled, making April 21, 2004 the operative record date.
- Maxwell argued either that the charter provision should not be read literally or that it was invalid because it eliminated board discretion allegedly granted by § 213(b).

## Issues

1. Whether a Delaware certificate of incorporation may validly eliminate or restrict the board’s discretion under 8 Del. C. § 213(b) to fix a record date for stockholder action by written consent.
2. If valid, whether the charter provision must be enforced according to its plain meaning, making the record date the date the first written consent is delivered rather than the board-selected earlier date.

## Decision

- The court upheld the charter provision as valid under the DGCL.
- The court enforced the provision according to its plain meaning.
- The operative record date for Jones’s consent solicitation was April 21, 2004 (delivery of the first signed consent).
- The board’s March 25, 2004 record date was ineffective for determining which stockholders were entitled to act by written consent in that solicitation.

## Legal Principles

- The DGCL permits substantial private ordering through the certificate of incorporation; the charter may “create[], defin[e], limit[] and regulat[e]” director and stockholder powers unless contrary to Delaware law. 8 Del. C. § 102(b)(1); § 141(a).
- A statutory provision granting board discretion (including § 213(b) record-date setting) is not necessarily mandatory; charter provisions may restrict or eliminate that discretion if not unlawful.
- A charter may adopt one of § 213(b)’s default record-date rules as a binding rule, thereby displacing board discretion to choose a different record date.
- Clear charter language is interpreted and enforced under ordinary contractual, text-focused principles; courts will not rewrite an unambiguous charter to restore discretion that stockholders removed.

## Conclusion

The Court of Chancery held that Maxwell’s charter validly fixed the written-consent record date as the date the first consent is delivered, and it enforced that rule to reject the board’s attempt to impose an earlier record date under § 213(b).


Jones Apparel Grp., Inc. v. Maxwell Shoe Co., 883 A.2d 837 (Del. Ch. 2004)