Does this matter? It is not clear that those provisions would be legal under state law, at least in Delaware, though probably it’s fine for Texas corporations. But if it really is allowed now, will companies take advantage of it? Will big companies start going public with provisions in their charters saying “hey if we do fraud you can’t sue us”? I don’t know. But … yes? In theory you could imagine that big institutional shareholders might push back on that sort of provision: Big institutions that care about governance might be suspicious of companies that go public saying “hey if we defraud you you can’t sue.” But I’m not sure. For one thing, my impression is that big institutional investors will complain about bad governance but ultimately put up with it. For another thing, I’m not sure that securities class actions are net beneficial to institutional investors.
