埃隆·马斯克的薪酬方案与特拉华州企业面临的威胁

出色的演示可以决定成功与失败的区别。优秀演示与卓越演示之间的差距，正是Canva。Canva通过一款强大的应用程序将您的想法汇聚一处。利用AI加速进程。轻松协作，因为当人们共同创造时，伟大的事情就会发生。

A great presentation can be the difference between success and failure. The difference between a good presentation and a great one, that's Canva. Canva brings your ideas together in one place with one powerful app. Use AI to move faster. Collaborate easily because great things happen when people create together.

难怪95%的财富500强公司都在使用它。Canva让您将宏大创意以思考的速度变为现实。让想象力在canva.com上发挥作用。

No wonder 95% of Fortune 500 companies use it. Canva lets you bring your big ideas to life as fast as you can think of them. Put imagination to work at canva.com.

Hiscox小型企业保险深知没有哪家企业像您的企业一样独特。全美超过60万家小型企业，从会计师、建筑师到摄影师和瑜伽教练，都信赖Hiscox保险提供保障。通过hiscox.com快速便捷的在线报价，找到适应您小型企业需求的灵活保障方案。网址是H I S C O X dot com。没有哪家企业像小型企业这样独特。

Hiscock Small Business Insurance knows there is no business like your business. Across America, over 600,000 small businesses, from accountants and architects to photographers and yoga instructors, look to Hiscox Insurance for protection. Find flexible coverage that adapts to the needs of your small business with a fast, easy online quote at hiscox.com. That's H I S C O X dot com. There's no business like small business.

Hiscox小型企业保险。

Hiscox Small Business Insurance.

每家企业都有雄心壮志。PayPal Open是专为助您实现成长而设计的平台，提供商业贷款以便扩展业务，并触达全球数亿PayPal客户。您的客户可以通过PayPal、Venmo、延期付款及所有主流信用卡随心支付，让您专注于规模扩张。当成长时机来临，只有一个平台适合所有企业：PayPal Open。

Every business has an ambition. PayPal Open is the platform designed to help you grow into yours with business loans so you can expand and access to hundreds of millions of PayPal customers worldwide. And your customers can pay all the ways they want with PayPal, Venmo, Pay Later, and all major cards so you can focus on scaling up. When it's time to get growing, there's one platform for all business. PayPal Open.

立即前往paypalopen.com成长。贷款需经批准并在可用地区提供。彭博音频工作室。播客。广播。

Grow today at paypalopen.com. Loans subject to approval in available locations. Bloomberg Audio Studios. Podcasts. Radio.

新闻。

News.

大家好，欢迎收听新一期的《Odd Lots》播客。我是Tracy Allaway。

Hello, and welcome to another episode of the Odd Lots Podcast. I'm Tracy Allaway.

我是Joe Wiesenthal。

And I'm Joe Wiesenthal.

Joe，我有个有趣的事实要告诉你。

Joe, I have a fun fact for you.

说吧。

Go on.

准备好了吗？嗯。好的。特拉华州的人口大约有105万，略多于一百万。

Are you ready? Yeah. Okay. So Delaware has a population of about one point o 5,000,000, a little over a million.

好的。

Okay.

它是人口最少的州之一。

It's one of the least populous states.

是的。

Yeah.

对。我觉得

Right. I think

它的人口比美国很多大城市都要少。

it has fewer people than a lot of big cities in The US.

确实如此。

For sure.

然而，特拉华州有210万家企业在州内注册。基本上相当于每个人对应两家企业。

However, Delaware has 2,100,000 businesses registered in the state. So basically two businesses for every person.

这真是个有趣的冷知识。我是真不知道这个。我的意思是，我知道这个州人口规模不大。我知道很多公司或企业都在特拉华州注册，但没想到是二比一的比例。很棒的小知识，特雷西。

This is a legit fun fact. This is like a legit I did not know this. I mean, I knew that it was not a very big state population wise. I know that so many corporations or businesses or whatever incorporate in Delaware, but there's sort of two to one ratio. Excellent fun fact, Tracy.

说得好。

Well done.

是的。下次你办晚宴时，可以大声喊出这个事实。但我的意思是，显然，你可能会争辩说特拉华州人只是非凡地具有创业精神。但正如你提到的，不是这样。正如你提到的这个

Yes. For your next dinner party, you can shout that one out. But, I mean, obviously, maybe you could argue that Delawareans are just phenomenally entrepreneurial. But as you mentioned no. As you mentioned this

并不比其他地方更多。我不是在贬低他们。我只是知道那并不是真正的情况。

No more than any I'm not dismissing them. I just know that that's not really what's going on.

没错。这里还有别的原因，那就是特拉华州已成为公司注册的事实首选州。

Right. There's something else going on here, which is that Delaware has become the de facto state for companies incorporating.

是的。这就像是我们对特拉华州的主要了解。

Yeah. This is like the main thing that we know about Delaware.

我们并不真的...我是说...除了那个和养鸡场。

We don't really I mean That and chicken farms.

那些鸡。对。不是那些鸡。但除了通常在其法院上演某种公司斗争时，你很少听到关于特拉华州的消息。当然，它有一个专门处理公司斗争等事务的法院系统。

The chickens. Right. Not the the chickens. But you don't hear much about Delaware except typically when there is some sort of corporate fight playing out in its courts. And, of course, it has a dedicated court system for corporate fights and so forth.

多年来有一些突出的例子让我们了解了衡平法院是什么，然后我又忘了衡平法院是什么或那个词从哪里来的。但人们似乎喜欢他们为公司事务设立的简化高效的法律体系，而且它似乎取得了相当不错的回报。

There's some prominent examples over the years where we learn about what the chancery is, and then I forget what the chancery is or where that word comes from. But people seem to like their simplistic streamlined legal system for corporate things, and it seems to have paid off reasonably well.

人们似乎喜欢它，但这可能正在改变。你提到了公司斗争。我们最近就有一个非常突出的例子，就是关于埃隆·马斯克在特斯拉的薪酬问题的法庭斗争。最终，埃隆直接说，我要把我的公司搬到德克萨斯州并在那里注册。事实上，我们确实看到一些公司选择离开特拉华州，迁往德克萨斯或内华达等地的例子。

People seem to like it, but that might be changing. So you mentioned corporate fights. We had a very prominent example of this relatively recently when there was the court fight over Elon Musk's compensation at Tesla. And eventually, Elon just said, you know, I'm gonna pick up my company and move it to Texas and incorporate there. And in fact, we are seeing a few examples of companies choosing to move away from Delaware and to places like Texas or Nevada.

我知道这对许多人来说可能不是当前最热门的新闻动态。现在有很多事情在发生。是的。但我认为这真的很有趣。它进展得比较缓慢，并且确实对股东权利有影响。

And I know this isn't maybe a top of mind news development for many people right now. There's a lot going on. Yeah. But I think it's really interesting. It's kinda slow moving, and it does have implications for shareholder rights.

完全同意。

Totally.

我实际上认为这是一个非常重要且相关的话题，我要说原因在于，从某种意义上说，法律体系是一种网络效应。人们尊重这个法律体系，即使有些判决可能对他们不利，他们也会想，好吧，这是一个高质量的法律体系。要在其他地方重建这样的体系是非常困难的。这也是那种，如果其他地方有吸引力，那么看看需要付出什么才能将实体从这个网络中撬开是很有趣的，这个网络拥有多年积累的成千上万的判决，可以在此基础上构建某种类似共同法律的东西。所以当我思考美国，思考这些更大的问题，比如如何转移资金、如何将实体和产业转移到其他可能更年轻、没有同等历史判例法水平的司法管辖区时，也许特拉华州的历史就是一个缩影，一个可以讲述的故事——它是如何建立起来的，以及在中长期内是否面临任何威胁。

I actually think it's a very important relevant topic, and I'll say this is the reason why, which is that in a sense, a legal system is this network effect. People respect the legal system, and even if maybe there are decisions that go against them, they're like, Okay, this is a high quality legal system. It is very hard to rebuild that somewhere else. It also is the sort of thing that if there is some pull elsewhere, then it's interesting to see what does it take to pry entities away from this network where there is years and years and thousands and thousands of decisions upon which to build something resembling a shared law. And so when I think about The United States, when I think about these bigger questions about how do you move dollars, how do you move entities, industries to other jurisdictions that are maybe younger and don't have the same level of historical jurisprudence, maybe there is a microcosm, a story to be told about the Delaware history, how it built up, and if there are any threats to it over the medium term.

绝对同意。说得非常好。

Absolutely. Very well put.

谢谢

Thank

你。所以我很高兴地说，我们请到了最合适的嘉宾。我们将与安·利普顿教授交谈。她是科罗拉多大学的法学教授，并担任劳伦斯·W·德穆特讲席教授。

you. So I am happy to say we have the perfect guest. We're going to be speaking with Professor Ann Lipton. She is a law professor at the University of Colorado and Lawrence W. Demuth chair.

那么，安妮，非常感谢你加入我们。

So, Anne, thank you so much for joining us.

非常感谢你们的邀请。

Thank you so much for the invite.

我先从一个显而易见的问题开始：我们是如何最终将特拉华州作为公司注册的事实上的地点的？为什么是特拉华州？

I'll start with the obvious question, which is how did we end up with Delaware as the de facto place for corporate incorporation? Why Delaware?

因为特拉华州实际上制定了一项战略，希望吸引公司注册，这可以追溯到19世纪末、20世纪初。当时许多州确实认为，通过让公司在其州内注册并支付费用可以赚钱。你甚至可以在当时的报纸上看到广告，宣传来某个州注册公司。而特拉华州有意识地决定使其州和法律对希望在那里注册的公司友好。因此，除其他事项外，当时企业的主要担忧之一是公司法会被政治化，规则会改变以实现某种政治政策。

Because Delaware actually strategized that it wanted to attract incorporations, and this was back in, oh, the late eighteen hundreds, early nineteen hundreds. A number of states actually thought that they could make money by having corporations incorporate in their state and pay fees. You could actually open a newspaper at that time and see advertisements for come incorporate in x state. And Delaware made a conscious decision to make its state and its law friendly to corporations that wanted to incorporate there. So among other things at the time, one of the main concerns of businesses was that corporate law would be used politically, that the rules would change to effectuate some kind of political policy.

因此，特拉华州通过了一项宪法修正案，要求其法官必须在政治上保持平衡，因此不能有一个政党超过半数或微弱多数。对于一个七人组成的法院，任何一个政党的成员不得超过四人。他们还通过了一项宪法修正案，要求对公司法的任何修改都需要立法机构三分之二的投票通过。这样试图使其公司法免受政治压力，然后他们只是让他们的公司法非常灵活且非常有利于管理者。管理者可以基本上按照他们的意愿行事，然后就从那里开始发展起来了。

So Delaware adopted a constitutional amendment that its judges would have to be politically balanced, so you couldn't have more than half, more than a bare majority of one party or the other. So for a seven member court, no more than four can be a member of one party or another. They also put a constitutional amendment that any changes to the corporate code required a two thirds vote of the legislature. So trying to insulate their corporate law from political pressures, and then they just made their corporate law very flexible and very manager friendly. Managers could kinda do what they wanted with it, and it just sorta took off from there.

这真的非常引人入胜。这种创建公司法律体系的想法，就像在一个政治体系无法打破的玻璃罩子里。这是一个似乎反复出现的主题。我们在讨论美联储及其名义上或事实上的独立性时谈到过这一点。当我们与阿拉斯加主权财富基金的人交谈时，也提到了这一点，以及政治体系在 accessing the corn seed（可以这么说）方面所面临的困难。

This is really fascinating. This idea of creating the corporate legal system in this sort of glass enclosure through which the political system cannot break. And this is a theme that seems to come up over and over again. We talk about it when we talk about the Federal Reserve and its nominal or de facto independent. This came up when we talked to the Alaska Sovereign Wealth Fund guys and the difficulty that the political system has in accessing the corn seed, so to speak.

请再多跟我们谈谈现有的结构，它们有多强大以隔离法院系统免受政治影响，以及那些玻璃墙有多耐用和多厚。

Talk to us a little bit more about the structures in place and how strong they are to insulate the court system from politics and how durable and thick those glass walls are.

是的。所以他们在立法机构行动等方面无法完全使法院脱离政治影响，这正是我们刚刚看到的情况。但他们在党派政治方面是相当绝缘的。党派政治在这里的表现方式与我们理解的其他地区不同。但这里的理念是——首先，需要注意的是，特拉华州显然在投票行为上非常蓝，而法官除了审理公司案件外还做其他事情。

Yeah. So they can't insulate the court from politics in the sense of the legislature acting and so forth, and that's actually what we've just been seeing. But they are fairly insulated from partisan politics. Partisan politics doesn't play out in the same way that we would understand it in other parts of the country or other areas. But so the idea here well, first of all, I mean, one thing to note, though, is that Delaware's obviously it's very blue state voting behavior, and judges do things other than decide corporate cases.

我们确实会忘记这一点，但事实上他们还有其他事情要裁决。但尽管如此，法官们在政治上是平衡的，以利于这个公司体系。特拉华州的法律制定方式——公司法的制定——实际上并不真正来自立法机构，因为立法机构大多数人并不是公司专家。他们不一定很懂公司法，他们只是立法者。

We do forget that, but they do, in fact, have other things to decide. But still, the judges are politically balanced in order to benefit this corporate system. So what happens with the way law is made in Delaware, corporate law is made, is that it actually doesn't really come from the legislature, which really, most of the legislature isn't they're not corporate experts. They don't know much about corporate law necessarily. They're just legislators.

所以实际情况是，特拉华州律师协会有一个公司法部门，他们实际上以某种非党派、技术官僚的方式起草拟议法规。然后立法机构往往会橡皮图章式地批准公司法部门提出的内容。

So what happens is there's the Delaware State Bar Association has a corporation law section, and they actually generate the proposed statutes on the theory that they can do it in a sort of nonpartisan, very technocratic way. And then the legislature tends to sort of rubber stamp the stuff that comes out of the corporation law section.

所以，你知道，乔之前提到了那种网络效应。我认为这在法律领域尤其重要，因为很多法律斗争都是基于先例的，对吧？特拉华州作为事实上的公司注册地，拥有几十年积累的先例供法官和律师参考。这种先例或先发优势如何帮助特拉华州呢？

So, you know, Joe mentioned that sort of network effect earlier. And I think this is really important in law especially because a lot of legal battles are based on precedent. Right? And so we have Delaware as the de facto incorporation state and decades and decades of precedent for judges and lawyers to actually look at. How does that sort of, I guess, precedent or first mover advantage help Delaware?

嗯，人们一直认为这会对特拉华州有利，因为你有成文法，还有几十年的先例，这样公司就能大致知道如果出现问题会如何得到解答。在其他州，有很多领域你根本没有信息可以参考，比如法院会如何处理特定类型的索赔或争议。一些明显的例子比如激进投资者收购、代理权争夺和反收购防御措施。因为我们知道在特拉华州这些情况会如何发展，因为大多数发生这类争斗的上市公司都在特拉华注册。我们不知道在其他州会是什么样子，因为那些州往往没有那么多激进投资者的情况。

Well, it's always been assumed that that would help Delaware because you would have the statute, and you have decades of precedent so that companies would kinda know how questions would be answered if they came up. So there are a lot of areas where other states, you just simply do not have information on, like, how a court would treat particular kinds of claims or particular kinds of disputes. Some of the obvious things are things like activist takeovers or or proxy contests and takeover defenses. Because we know how that looks in Delaware because Delaware incorporates most of the public companies where you have those kinds of fights. We don't know how that looks in other states because you don't tend to have as many activist situations in those other states.

所以这一直被认为是特拉华州的一个优势，所有事情都在那里展开。大多数其他州在制定自己的公司法时，经常参考特拉华州。有时他们会与特拉华州的公司法形成对比，但特拉华州始终是他们处理这些问题的参考点。这一直被认为是特拉华州的真正优势——你至少知道会发生什么。

So that's always thought to be sort of an advantage of Delaware that everything plays out there. And most other states, they very often look to Delaware when they're deciding their own corporate law. Sometimes they contrast their corporate law with Delaware, but Delaware is always kinda where they look to deal with these questions. And that's always considered to be a real advantage of Delaware. You at least know what's going to happen.

但这也意味着，因为这是判例法，大部分不在或一直没有被纳入成文法。它是法官逐个案件作出的裁决。这也意味着有时候很难深入理解，因为你必须阅读这个判决，别忘了那个判决，还有这个判决也要记住。如果你是第一次接触，可能会觉得很难弄清楚。

But it also means that because this is case law, it's mostly not in the or hasn't been mostly in the statute. It's judge by judge decisions. And that can also mean that sometimes it's sort of hard to penetrate because it's really you've gotta read this decision. Well, don't forget this other decision and don't forget this decision too. And that can be sort of hard to figure out if you're just looking at it for the first time.

是的。我对这种张力非常感兴趣。对吧？因为理论上，你把法律写在纸上，它们都是可见的，并且说，好的，这是一致的。我们知道会发生什么。

Yeah. I'm really interested in this tension. Right? Because in theory, okay, you write down laws on paper and they're all visible and say, okay, this is consistent. We know what's gonna happen.

但判决也是由法官做出的，人们会对此提出异议。否则，如果法官不需要行使某种裁量权，一开始就不需要审理案件。法官在裁决这些案件时，对于考虑特拉华州公司法的连贯性或深层原则，以及对其决策对特拉华州和州的长远影响，他们对自己的责任有何感受？

But also decisions are made by judges and people dispute them. Otherwise, they wouldn't have to have cases in the first part if if judges didn't have to exercise some sort of agency. How do the judges feel about their own responsibility when deciding these cases to think about consistency or the underlying deep principles of Delaware corporate law and the long term implications for the state of Delaware and for the state of when they make their decisions?

是的。所以这里存在一种张力。你刚才指出的就是一种张力。是的。一种存在于特拉华州与一般公司理论和公司法之间的张力。

Yeah. So there's a tension there. So you just identified, like, a tension. Yeah. A tension between the state of Delaware versus general corporate theory and corporate law.

而且我认为，除非你真的欣赏并热爱法律，否则你不会成为法官，也不会进入这个领域。我的意思是，特拉华州的法官对公司法、什么是正确答案以及公司应如何运作都思考得极为深入。他们的理论并不总是完全相同，但他们肯定有自己的观点。他们非常关心公司法的运作方式。但是，你知道，这也是当今一些张力的来源。

And I think you don't become a judge, and you don't go into this area unless you really do appreciate the law and enjoy it. And and I mean, the Delaware judges are extremely thoughtful about corporate law and what the right answer is and how corporations should work. They don't always have exactly the same theories, but they definitely have a point of view. And they care very much about how corporate law operates. But and, you know, this is where some of the tension is today.

如果公司董事会一次又一次地对他们的判决感到不满，那么特拉华州可能会将公司注册业务流失到其他州。这种张力体现在，一方面要忠于公司法应有的愿景，另一方面又面临赤裸裸的现实：如果管理者不满意并去别处注册，特拉华州就没什么可做的了。这种张力自特拉华州开始注册公司以来就一直存在。我的意思是，我不认为法官通常会有意识地基于此做出判决，或者他们肯定在尽量避免。但这种张力一直存在，过去也是如此。

If corporate boards are unhappy with their decisions over and over and over again, then Delaware may lose incorporation to other states. And how that plays out between sort of fidelity to a vision of what corporate law should be coupled with the straight up reality that if managers are unhappy and incorporate elsewhere, Delaware doesn't have doesn't get to do much anymore. That's a tension that's been playing out for just as long as Delaware's been incorporating companies. I mean, that's always I don't think judges are usually consciously making that decisions based on that, or they're certainly trying not to. But that tension is always present and has been present in the past.

在我们讨论为什么有些公司目前似乎对特拉华州不满之前，我打算先提出乔每当遇到这个问题时都会问的经典问题：什么是衡平法院？

Before we get to why companies some companies seem unhappy with Delaware at the moment, I'm gonna go ahead and ask Joe's classic question whenever this comes up, which is, what is a chancery court?

它只是特拉华州审理公司案件的法院的名称。所以，我的意思是，这是一个非常技术性的法律点，但历史上，世界上有两种类型的法院。有普通法法院和衡平法院。普通法法院遵循这些严格的规则，而衡平法院则实际上是关于公平、处理什么是正确答案以及实现正义，而不是依据制定的技术规则。所以这是两个独立的法院体系，这源自英格兰，在美国也是如此。

It's just the name for the Delaware courts that hear corporate cases. So, I mean, the fun this is a very technical legal point, but historically, there were two types of courts in the world. There were the courts of law and the courts of equity. The courts of law followed sort of these stringent rules, and the courts of equity were literally sort of about fairness and dealing with what's the right answer and doing justice as opposed to according to technical rules that were laid down. So there was two separate courts, and that was from England, and that was true in The United States.

然后美国在三十年代左右在联邦层面合并了这两个法院，大多数州也做了同样的事情。所以只会有一个法院审理所有案件，包括普通法案件和衡平法案件。但特拉华州从未这样做。所以它仍然有独立的普通法法院和衡平法法院，即衡平法院。因此它的历史渊源本质上植根于公平理念和命令人们采取适当行动的原则。

And then The United States in the thirties or so melded the two courts at the federal level, and most states did the same. So there would just be one court that heard all the cases, law cases, and equity cases. But Delaware never did that. So it still has the separate court of law and the court of equity, which is the chancery court. So its historical origins are essentially rooted in this idea of fairness and commanding people to take the proper actions.

它不设陪审团。案件仅由法官审理。法官负责认定事实。在其他情况下，陪审团会这样做，但在特拉华州衡平法院，法官负责认定事实。他们非常专业。

And it doesn't sit with a jury. The cases are heard just by the judges. The judges find facts. Otherwise, juries would do that, but the judges find facts in the Delaware Court of Chancery. They're very expert.

你知道，他们在上任前都来自企业实务领域，这就是他们的专业。我的意思是，除了公司案件外，他们也审理其他事务。其他事项也属于衡平法范畴，但显然主要的是公司案件。

They are you know, they're all drawn from corporate practice before they get on the bench, and that's what they do. I mean, they hear other things besides corporate cases. Other things fall into this category of equity, but the main thing, obviously, is the corporate cases.

本节目由Nuveen为您呈现。如果您知道未来正在注视，您会如何投资？在Nuveen，这不是一个理论问题。这是一种源于穿越125年市场周期的视角，运用远见创新并适应全球投资者不断变化的需求，坚定不移地追求为客户、社区和全球经济带来持久表现的信念。Nuveen。

This message is brought to you by Nuveen. How would you invest if you knew the future was watching? At Nuveen, this isn't a theoretical question. It's a perspective that comes from navigating one hundred and twenty five years of market cycles, using foresight to innovate and adapt to the changing needs of investors around the world, and remaining steadfast in the pursuit of lasting performance for clients, communities and the global economy. Nuveen.

投资，如同未来正在注视。访问nuveen.com/future了解更多。投资涉及风险。本金可能损失。

Invest like the future is watching. Visit nuveen.com/future to learn more. Investing involves risk. Principal loss is possible.

那么，您听说过那个内置自动节省功能的处方计划的故事吗？它让任何规模的家庭都能确信药物成本不会成为他们的负担。前往cmk.co/stories了解CVS Caremark如何仅通过会员身份就帮助会员节省开支。网址是cmk.c0/st0ries。

So, have you heard the story about the prescription plan with savings automatically built in? It's where a family of any size can feel confident the cost of their medication won't hold them back. Go to cmk.co/stories to learn how CVS Caremark helps members save just by being members. That's cmk.c0/st0ries.

Hiscock小型企业保险深知没有哪家企业像您的企业一样独特。全美有超过60万家小型企业，从会计师和建筑师到摄影师和瑜伽教练，都信赖Hiscox保险提供保障。通过hiscox.com快速便捷的在线报价，找到适应您小型企业需求的灵活保障方案。网址是hisc0x.com。没有哪家企业像小型企业一样独特。

Hiscock Small Business Insurance knows there is no business like your business. Across America, over 600,000 small businesses, from accountants and architects to photographers and yoga instructors look to Hiscox Insurance for protection. Find flexible coverage that adapts to the needs of your small business with a fast, easy online quote at hiscox.com. That's hisc0x.com. There's no business like small business.

Hiscox 小企业保险。

Hiscox Small Business Insurance.

所以我最终想讨论埃隆薪酬案，也许听听你的看法等等。但在那之前，你提到这并非新鲜事。关于特拉华州及其持久性存在一些长期问题。你能给我们简单介绍一下历史吗？你知道，在埃隆案之前有哪些案例可能让人们质疑特拉华州体系的持久性？

So I wanna eventually get into the Elon pay case and maybe get your read on it, etcetera. But before we do that, you mentioned that this is nothing new. Some of the there are these long standing questions about the Delaware and its persistence. Can you give us a little history? What are you know, what were the Elon cases pre the Elon cases that sort of maybe had people questioning the sort of durability of the Delaware system.

在埃隆之前很久很久的时候。

The long, long, long ago before Elon.

埃隆·阿万特·莱莱普。它是

Elon Avante Lelep. It's

是在八十年代。那是很久以前了。是八十年代。发生了两起重大事件。一个是，这些是你在任何基础公司法课程中都会学到的基本法律案例。

it's in the eighties. It was that long ago. It was the eighties. There were two big incidents. So one case of like, these are the basic law cases that you learn if you're in any kind of basic corporate law class.

一个案例叫本·戈库姆案。基本上，一家公司在出售自己，他们商定了一个价格，股东提起诉讼，声称董事会在设定这个价格时没有尽到应有的谨慎。没有人暗示他们恶意行事，但他们只是没有花时间确保获得最佳价格。特拉华州最高法院同意了，裁定董事可能因 essentially 没有为公司争取到合适的价格而承担个人损害赔偿责任。这让董事会感到恐惧，因为这些董事会可能是善意行事，但仍然可能——我的意思是，没有以足够高的价格出售公司。

So one case was called Ben Gorkum. Basically, a company was selling itself, and they settled on a price, and shareholders sued, claiming that the board didn't take proper care in setting this price. Nobody suggested they were acting in bad faith, but they just didn't take the time to make sure that they got the best price. And the Delaware Supreme Court agreed, and it held that the directors could be held personally liable for damages for essentially not getting the right price for the company. And that terrified boards because these boards could be acting in good faith and still could be I mean, not selling the company for enough.

那是严重的金钱和损害赔偿。所以特拉华州修订了其公司法，允许公司现在可以在章程中添加一项条款，规定董事不会因疏忽而承担金钱损害赔偿的责任。这之后也确实促进了公司在特拉华州注册。到现在，每个州都采用了类似的规定。但在当时，这样做 essentially 是因为他们知道自己刚刚把董事会吓坏了。

That's serious money and damages. So Delaware amended its corporate code so that companies can now add a provision to their charter that says directors will not be held liable for monetary damages for negligence. And that really also boosted companies incorporating in Delaware after that. And by now, every state has adopted a similar thing. But at the time, that was done essentially because they knew that they had just scared the bejesus out of boards.

另一个在八十年代出现的问题是在敌意收购时代。那是所谓的交易十年，出现了大量敌意收购尝试。当发生敌意收购时，董事会会设置障碍，通常是股东权利计划（毒丸计划）来阻止敌意收购。当时存在一个真正的问题：即使股东希望达成交易，董事会能在多大程度上抵御敌意收购者。

And another issue that came up, this was also in the eighties, was during the hostile takeover era. This was, you know, the deal decade. There were lots and lots of hostile takeover attempts. And when there's a hostile takeover attempt, boards put up barriers, usually shareholder rights plans, poison pills, to prevent hostile takeovers. And there was a real question as to how far boards could go to fend off a hostile acquirer even if the shareholders wanted this deal.

起初，特拉华州法院对此相当严格。在某个时间点后，他们表示：必须让股东来决定。如果股东愿意，董事会不能仅仅阻止对公司有利的收购提议。再一次，出现了公司可能离开的威胁。

And at first, the Delaware courts were pretty strict about it. They after a certain point, they were saying, look. You gotta let shareholders decide. The board can't just block beneficial proposals to buy the company if the shareholders want it. And once again, there were threats to that companies would leave.

它们会离开特拉华州，以便能够防范敌意收购尝试。在那个时候，特拉华州最高法院做出了让步，采用了新的标准，允许在抵御敌意收购时给予董事会更大的尊重。

They would leave Delaware so that they could protect against hostile takeover attempts. And at that point, the Delaware Supreme Court backed off. It adopted new standards that allowed much more deference to boards when they are fighting off hostile takeover attempts.

那么快进到今天，我只是想确认我们的先验假设是正确的。

So fast forward to today, I just wanna make sure we have our priors correct.

我们喜欢检验我们的先验假设。

We love testing our priors.

我们在这个播客中的先验假设。

Our priors on this podcast.

但是，撇开这些例子不谈，现在是否感觉有更多关于特拉华州替代方案的讨论，或者似乎有更多公司正在考虑离开？

But, you know, those examples aside, does it feel like nowadays there is perhaps more discussion of alternatives to Delaware or more companies that seem to be moving away?

是的。所以我不知道从统计上看这些数字是否真的能改变局面。我们确实看到了一些公司计划搬迁的高调公告，但目前我们还没有足够的数据来判断这是否是一场严重的、类似大规模撤离的现象。但讨论确实多了很多，董事会和律师们确实更多地思考或建议董事会是否应该在特拉华州注册，而以前这甚至不是一个问题。所以这绝对是正在发生的事情。

Yeah. So I don't know if statistically the numbers really move the needle. We've seen definitely some high profile announcements of companies planning to move, but we just don't have enough data right now to see whether this is a serious, like, exodus. But there's definitely a lot more discussion, and there's definitely a lot more boards thinking or lawyers thinking they have to counsel boards whether you wanna incorporate in Delaware when before that wouldn't wouldn't even have been a question. So that's definitely something that's happening.

那么，为什么？律师建议董事会不要这样做是因为什么？我认识一些曾经创办初创公司的人，在特拉华州注册的想法，那显然是你立刻就会做的事情。绝对是这样。律师可能会说什么，也许需要花点时间考虑一下。到底是什么发生了变化导致了这种情况？

Well, why? So what is it if a lawyer's counseling boards don't just because I've known people who have launched startups at times and the idea of incorporation in Delaware, that was just obviously what you You just did it right away. Absolutely. What is it that a lawyer might say, Well, maybe take a few beats and think about this. What has actually changed that's caused that?

嗯，特拉华州进行了反击，最近修改了法律以应对这种情况。但本质上，大部分问题涉及股东责任或对股东的责任，以及易受股东诉讼的影响。而这种易受攻击性主要是针对涉及利益冲突交易的股东诉讼。这是主要的头条新闻。还有其他一些问题出现，但主要的头条是董事会感觉特拉华州让股东太容易就利益冲突交易提起诉讼了。

Well, understands fought back and it's changed its law very recently to sort of fight this off. But essentially, issue most of the issue is shareholder liability or liability to shareholders and vulnerability to a shareholder lawsuit. And most of that vulnerability is vulnerability to a shareholder lawsuit over conflicted transactions. That's the main headline thing. There are a few other issues that have come up, but the main headline thing is boards feeling as though Delaware has made it too easy for shareholders to sue over conflicted transactions.

什么是利益冲突交易？让我们了解一下这些术语。能举一个例子吗，比喻性的或实际的都可以？

What's a conflicted transaction? Just so we know these terms. What is an example of one either figurative or actual?

实际的例子是特斯拉收购SolarCity。埃隆·马斯克在那笔交易中涉及双方。他既是特斯拉的董事会成员，又是SolarCity的董事会成员并运营着该公司。所以特斯拉利用其资源收购了埃隆·马斯克的公司。这是一个典型的利益冲突交易。

Actual Tesla buying SolarCity. Elon Musk was on both sides of that transaction. He's on the board of Tesla, and he's on the board of and running SolarCity. And so Tesla is using its resources to buy out Elon Musk's company. So that's a classic conflict transaction.

这实际上让我想起了埃隆。但特斯拉从特拉华州搬到德克萨斯州有多大影响？因为我们谈论的是网络效应。是否一个高调的公司搬迁了，突然所有其他公司都会想，我们也要这样做。

That actually reminds me just speaking of Elon. But how big a deal was Tesla moving from Delaware to Texas? Because we talk about this network effect. Is it the case that one high profile company moves and suddenly all these other companies are like, we're gonna do that too.

是的。我认为这是一件大事。首先，我们都知道这次搬迁是受薪酬方案案件的启发，但我认为对特拉华州的一些抱怨更广泛。但无论如何，我认为这是一件大事，因为埃隆·马斯克受到许多CEO、许多风险投资家、许多硅谷人士的钦佩。他们视他为真正的榜样。

Yeah. I think it's a big deal. I mean, first of all, you know, we all know that it was inspired by the that move was inspired by the pay package case, but I think some of the grumblings about Delaware are broader. But I think that was a big deal if for no other reason than Elon Musk is very admired by a lot of CEOs, a lot of venture capitalists, a lot of Silicon Valley. They look to him as a real role model.

因此，当他公开宣布受够了特拉华州，并展示出有可能让一家上市公司获得股东支持迁出特拉华州时——尽管他的情况特殊，与股东的关系可能其他公司无法复制——我认为这正是让董事会开始思考、将其提上议程的那种事情。

And so when he publicly announces that he's had it with Delaware and shows that it's possible to take a public company and get shareholder support for moving out of Delaware, even if he is his special and he has a particular relationship with the shareholders that may not be shared by other companies, I think that's the kind of thing that has boards thinking, putting it on the table.

我们来谈谈薪酬方案这件事。我不知道，你看，我真的不太懂法律或这类东西。但当我这么说时，嘿。

Let's talk about the pay package deal. I don't know. Like, look. I I really don't know much about the law or anything about this stuff at all. But I say when I say, hey.

这是他同意了的薪酬方案。这个法官凭什么说，对，他不能拿这笔钱？凭直觉我觉得这太离谱了。为什么这个法官要取消他的薪酬方案？

This was the compensation package he agreed to. Who is this judge to say that Yeah. He can't get paid intuitively to me? It seems outrageous. Why is this judge canceling his pay package?

但这只是我这个外行人随便看看的读后感。我可能连文章都没读完。所以我老实说，你为什么不作为真正懂行的人告诉我，我们应该如何理解那个案子到底是怎么回事？

But this is my dumb guy just reading ahead. I didn't even read the article probably. So why don't you I'm being honest here. So why don't you tell me as someone who actually understands this stuff, how we should read what that case was all about?

好的。要记住，这里的关键问题是关联交易。没错，马斯克的薪酬属于标准的关联交易，因为董事会决定其CEO的薪酬这本就在董事会的裁量权范围内。但董事会里包括了埃隆·马斯克和他的兄弟。

Okay. So remember, the issue here is conflicted transactions. Yeah. Musk's pay was a standard conflicted transaction in the sense that the board was deciding what it was gonna pay its CEO, which is very much well within the board discretion. But the board included Elon Musk and his brother.

因此，这就是典型的关联交易。是一个董事会，但是

So therefore, this was your classic conflict transaction. It was a board But

很多CEO都在他们自己的董事会里。

a lot of CEOs are on their board.

是的。

Yes.

好的。继续

Okay. Keep

说。根据特拉华州法律，一般规则是存在利益冲突的交易会受到法院的严格审查，除非它被净化。如何净化？你在决策过程中引入独立的决策者，然后法院会说，好吧，我就听从独立决策者的意见。你有两种选择作为独立决策者：无利益冲突的董事会成员或股东。

going. Under Delaware law, the general rule is a conflicted transaction will get close scrutiny by a court unless it's cleansed. How do you cleanse it? You put an independent decision maker in the mix, and then the court will say, well, I'll just defer to the independent decision maker. And you have two options for an independent decision maker, the unconflicted board members or the shareholders.

通常我的意思是，这种情况不会发生。你必须明白这个案件有多么不寻常。通常情况下，这已经绰绰有余了。你让无利益冲突的董事会成员决定薪酬，或者让无利害关系的股东投票决定薪酬。到那时，特拉华州法院就说，我不管了。

And usually I mean, this doesn't happen. You have to understand how unusual a case was. Usually, that's more than sufficient. You have the unconflicted board members decide the pay, or you have the disinterested shareholders vote on the pay. And at that point, Delaware says, I'm out.

你们啊，愿上帝保佑。这里的问题是那些所谓的无利益冲突的董事会成员实际上并非没有利益冲突。他们都是马斯克安插进特斯拉董事会的人，基本上都是他最铁的哥们。他们成立了一个委员会，本应是委员会的独立成员，但这个委员会仍然与马斯克有密切关系。然后委员会又成立了一个工作组来实际制定薪酬方案，他们挑选了与马斯克关系最密切的人进入工作组。

You guys, god bless. The problem here was that the unconflicted board members were not unconflicted. So they were all like, he stocks Tesla's board with people who are basically his bestest buds. And they created a committee that was supposed to be the independent members of the committee, and the committee still had close ties to Musk. And then the committee formed a working group that would really do the compensation package, and they picked the people with the closest ties to Musk to put in the working group.

还有很多事实表明马斯克如何干预委员会的审议过程，而委员会只是对他言听计从。鉴于这种情况，法院认为他们在董事会层面没有设置真正独立的决策者。于是他们就把这件事交给股东，进行了股东投票。但委托声明书中没有充分披露信息。股东没有得到充分的信息。

And there were all these facts about how he interfered with committee's deliberations, and they just deferred to him. So given that, the court felt that, like, they didn't put actual independent decision makers at the board level. So then they took it to the shareholders and made a shareholder vote. But there was not full disclosure in the proxy statement. The shareholders were not fully informed.

出于显而易见的原因，除非获得完整信息，否则股东无法净化任何交易。所以法院面临的情况是：董事会不独立于马斯克，股东也没有获得充分信息，这就是为什么法院认为，好吧，我必须评估这个薪酬方案，因为没有引入独立的决策者。然后基于此，法官认定这个薪酬方案太过分了。

And for obvious reasons, shareholders can't cleanse anything unless they have full information. So left with a situation where the board was not independent of Musk and the shareholders were not fully informed, that's why the court felt, well, I have to evaluate the the pay package because no independent decision maker was put in the mix. And then from there, she decided it was too much.

所以这可能是个棘手的问题，但既然我们在讨论，正如你所阐述的，这场讨论或辩论的核心是股东责任问题。我们是否有任何研究能真正告诉我们，当公司表明要离开特拉华州或实际这样做时，股价和股票会发生什么变化？

So this might be a tough question to ask, but since we're talking you know, this discussion or debate centers on shareholder liability as you laid out. Do we have any research that actually tells us what happens to share prices and stocks when a company signals that it's gonna move away from Delaware or when it actually does it?

我们有极其混杂的证据。事实是学者们一直在争论这个问题，争论这是否会产生影响。有些人发现，根据公司类型的不同，离开可能是有益的。代价高昂。我的意思是，特拉华州开展这项注册业务的全部意义在于这是该州自我筹资的方式。

We have incredibly mixed evidence. The fact is that scholars have been fighting about this forever, whether it makes a difference. And some have found that maybe it's beneficial depending on the type of company. Expensive. I mean, the the whole point of Delaware having this chartering business is that's how the state funds itself.

它25%的收入来自公司注册费。没有其他州做类似的事情。所以对于资源较少的小公司来说，离开特拉华州可能是有益的。但大多数情况下，这是一个不同学者会得出不同结论的领域。我们只是无法确定。

It gets 25% of its revenues from incorporation fees. No other state does anything like that. So for smaller companies with less resources, it can be beneficial to move away from Delaware. But mostly, this is something where different scholars will come up with different things. We just don't know for sure.

这可能是因为特拉华州已经主导了这么久，至少对上市公司而言，很难判断是否存在严重的撤离趋势。现在我们就会知道了。

And that's probably because Delaware has been dominating for so long, at least for public companies, that it's hard to tell if there's a serious movement away. Now we'll know.

这很有趣。那么我们来谈谈在德克萨斯州重新注册公司的吸引力。你知道，我能想象到一些模糊的意识形态和氛围方面的原因

It's interesting. So let's talk about the allure of, say, reincorporating in Texas. You know, I could see just sort of for vibes in vague ideological things

税收。

Taxes.

埃隆想去德克萨斯州。我并不感到惊讶，政客们可能也是，是的，埃隆，来吧。股东们则觉得，我们要远离那些蓝州，它们通过不让你拿到十亿美元的薪酬方案之类的方式把共产主义强加给你。尽管如此，在我看来，目标或者说人们喜欢特拉华州的原因在于平衡的理念。因为虽然可能存在一个埃隆·马斯克崇拜群体，乐于给他钱，但并非每个股东都希望与他们的CEO保持那种关系，即只是大把大把地掏钱。

Elon wants to go to Texas. I'm not surprised, and probably the politicians are, yeah, Elon, come on down. The shareholders are like, we're gonna get away from those blue states that impose communism on you by not letting you get your billion dollar pay package or whatever. All that being said, the goal it seems to me or why people like Delaware is right, this idea of balance. Because while there may be an Elon Musk cult that loves to hand him money and not every shareholder wants to have that relationship with their CEO where they're just forking over a lot of money.

所以在我看来，也许德克萨斯州对埃隆和他的股东来说是个不错的选择，但在大多数情况下，仍然需要一个法院系统来维持CEO、董事会和外部股东之间的权力平衡，这对大多数公司来说仍然是可取的。

And so it seems to me that, okay, maybe Texas is a good fit for Elon and his shareholders, but that's still in many cases, some sort of court system that imposes, maintains a balance of power between the CEO, the board, and the outside shareholders is still what's gonna be desirable for most companies.

是的。这是个复杂的问题。这正是特拉华州自我推销的方式，即它维持了一种平衡，给予董事会极大的灵活性和极高的尊重度，但最终为股东提供了一些基本的底线保护。问题在于，实际上存在两个层面的问题。

Yeah. So this is a complicated question. That is exactly how Delaware has sold itself, that essentially that it maintained a balance, that it mostly gave boards incredible amounts of flexibility and incredible amounts of deference. But ultimately, there was, some basic floor protections for shareholders. The issue well, there are twofold issues.

首先是，最终企业管理者才是决定初创公司注册地的人。我的意思是，一旦公司上市，如果想搬迁，就需要股东投票。但在此之前，你可以选择任何州注册。即使上市后需要股东投票，正如我们在特斯拉案例中看到的，如果你有控股股东，投票就很容易，完全取决于控股股东的意愿。

The first is that ultimately, corporate managers are the ones who make decisions about where to incorporate when they do a startup. I mean, once you're actually publicly traded, if you wanna move, you need a shareholder vote. But before then, you can pick any company you want to. And even if you need a shareholder vote once you're publicly traded, as we saw with Tesla, if you're a meta or where you have a controlling shareholder, the shareholder vote's really easy. It's just what the controlling shareholder wants.

所以搬迁并不困难。因此，你不这样做的唯一原因是你真的认为会因此付出股东代价。但尚不清楚股东会对选择保护较少的州施加多大的代价。理论上，如果在保护较少的州，资本成本会更高，但正如你刚才问的，这在实际中起多大作用并不明确。

So moving is not hard. And so the only reason essentially that you wouldn't do it is if you really thought you were gonna pay a price with shareholders. It's not clear how much of a price shareholders are gonna inflict for being in a state with fewer protections. So the theory has always been the cost of capital will be higher if you're in a state with fewer protections. But it's not clear how much that plays in as you just asked.

比如，搬迁到另一个州是否真的会对股东价值造成代价？股东是否真的有力量进行抵制尚不明确。而且，特拉华州看到这种搬迁趋势后，也削弱了许多股东保护措施，这些措施曾导致像马斯克薪酬方案这样的判决。所以现在我们真的不知道是否有差异了。

Like, is there really a shareholder value price for moving to a different state? It's not clear shareholders really have the power to push back. And Delaware also, seeing this move, weakened a lot of the shareholder protections that led to verdicts like the Musk pay package case. So now we really don't know if there's a difference.

那么，你听说过内置自动节省功能的处方计划吗？它让任何规模的家庭都能放心，药物费用不会成为负担。前往 cmk.co/stories 了解CVS Caremark如何仅凭会员身份就帮助会员节省开支。网址是 cmk.co/st0ries。

So, have you heard the story about the prescription plan with savings automatically built in? It's where a family of any size can feel confident the cost of their medication won't hold them back. Go to cmk.co/stories to learn how CVS Caremark helps members save just by being members. That's cmk.co/st0ries.

Hiscock小型企业保险深知，没有哪家企业像您的企业一样独特。全美有超过60万家小型企业，从会计师、建筑师到摄影师和瑜伽教练，都信赖Hiscox保险提供保障。通过快速简便的在线报价，在hiscox.com找到适应您小型企业需求的灵活保险方案。网址是 hisc0x.com。小企业，大不同。

Hiscock Small Business Insurance knows there is no business like your business. Across America, over 600,000 small businesses, from accountants and architects to photographers and yoga instructors, look to Hiscox Insurance for protection. Find flexible coverage that adapts to the needs of your small business with a fast, easy online quote at hiscox.com. That's hisc0x.com. There's no business like small business.

Hiscox 小企业保险。这是由 Amazon Business 为您带来的彭博商业周刊分钟播报。我是 Carol Masser。84年历史的皮革制品制造商 Coach 最近势头正旺，这要归功于新一代消费者。在经历了多年的零售低迷后，Coach 在最近一个财季实现了近13亿美元的收入，较上年同期增长了15%。

Hiscox Small Business Insurance. This is the Bloomberg Businessweek minute brought to you by Amazon Business. I'm Carol Masser. The 84 year old leather goods maker Coach is on a hot streak lately thanks to a new generation of consumers. After years in the retail doldrums, Coach logged almost $1,300,000,000 in revenue in the most recent fiscal quarter, up 15% from the year before.

商业周刊的 Avalon Pernell 写道，这次复兴是长达十年的努力成果，Coach 通过退出商场、进入潮流引领者手中来重建其酷炫形象，关闭并整合零售门店，并开展了由赛琳娜·戈麦斯、詹妮弗·洛佩兹等大牌明星主演的广告活动。Coach 还抓住了文化潮流，因为年轻消费者寻找具有定制元素的品牌。TikTok 网红经常被看到背着挂满樱桃、梨子和椒盐卷饼形状饰物的 Coach 包包。这就是由 Amazon Business 为您带来的彭博商业周刊分钟播报，Amazon Business 是您智能商业采购的合作伙伴。经营企业，事情很多，对吧？

Business weeks Avalon Pernell writes the revival has been a decade in the making as Coach worked to rebuild its cool factor by getting out of the mall and into the hands of tastemakers closed and consolidated retail locations and ran ad campaigns featuring Selena Gomez Jennifer Lopez and other high wattage names coach also tapped into the cultural zeitgeist as young consumers look for brands with some customization. TikTok influencers are often seen carrying coach purses dripping with charms shaped like cherries, pears, and pretzels. That's the Bloomberg Businessweek Minute brought to you by Amazon Business, your partner for smart business buying. Running a business, it's a lot. Right?

订单要处理，开支要追踪，采购要管理。感觉一天的时间永远不够用。我们都需要更多时间。这就是 Amazon Business 的用武之地。他们提供智能采购解决方案，帮助您充分利用时间，例如支出可见性——一个基于云的系统，用于追踪您的采购模式，以便优化节省；以及批量采购，让您可以通过数量折扣持续节省选定产品的成本。

Orders to place, expenses to track, procurements to manage. It feels like there are never enough hours in the day. We could all use more time. That's where Amazon Business comes in. They offer smart buying solutions to help you make the most of yours, like spend visibility, a cloud based system to track your buying patterns so you can optimize your savings, and bulk buying so you can continue to save costs on select products with quantity discounts.

这才是智能。Amazon Business 承担繁重的工作，让您最终可以专注于业务增长，而不是淹没在行政事务中。从定制推荐到实时支出追踪，再到根据您的时间表量身定制的配送选项，他们在每一步都为您提供支持。何不少花时间操心琐事，多花时间实现目标，或者甚至偷得一些应得的休息时间？了解更多关于智能商业采购的信息，请访问 amazonbusiness.com。

Now that's smart. Amazon Business handles the heavy lifting so you can finally focus on growing your business instead of drowning in admin. From customized recommendations to real time spend tracking and delivery options tailored to your schedule, they've got your back every step of the way. Why not spend less time sweating the small stuff and more time crushing your goals or maybe even sneaking in some well earned downtime? Discover more about smart business buying at amazonbusiness.com.

需要 Business Prime 会员资格才能访问支出可见性功能。

A Business Prime membership is required to access spend visibility.

为什么少数股东会真正同意迁移到一个表面上他们权利更少的司法管辖区？

Why would a minority shareholder actually approve to move to a jurisdiction where ostensibly they have fewer rights?

因为请记住，这其中90%是关于股东诉讼。可能存在关联交易并就关联交易提起诉讼。这就是这场斗争的大部分内容。虽然不是全部，但这是大部分。关于股东诉讼是否确实是处理这个问题的最佳方式，存在巨大争议。

Because remember, 90% of this is about shareholder litigation. There may be a or or and conflict transactions and suing over conflict transactions. That is most of what this fight is about. It's not the only thing that's most of it. There is a huge debate about whether shareholder litigation is in fact the best way to handle this problem.

我的意思是，关于恶意诉讼存在各种担忧。有人担心这仅仅是律师驱动的诉讼。在Tornetta案中，埃隆·马斯克的薪酬方案。请记住，该案中的股东仅持有九股，字面意义上的九股特斯拉股票。因此，股东诉讼是否真的值得进行，确实是个值得商榷的问题。

I mean, there are all kinds of concerns about strike suits. There are concerns that, you know, that this is just lawyer driven litigation. In the Tornetta case, the Elon Musk pay package. Remember, the shareholder there held nine shares, literally nine shares of Tesla stock. So there's a real question about whether shareholder litigation is in fact a game that's worth the candle.

毫无疑问，确实存在有问题的交易，股东诉讼可以为股东赢得巨额赔偿。但通常这些赔偿来自公司本身支付的保险，在这些巨额和解中。这是否是处理利益冲突交易情况的最佳方式，是一个非常具有争议的问题。因此股东很可能认为，他们可以转移到保护较少的司法管辖区，基于减少诉讼最终对公司更有利的理论。

Unquestionably, there are real problematic transactions, and shareholder litigation can win very huge payouts for shareholders. But usually, those payouts come from the insurance that the company itself paid for in these huge settlements. Whether or not that ultimately is the best way to handle a conflict transaction situation is is a very debated question. So shareholders may very well think they can move to a jurisdiction with fewer protections on a theory that ultimately less litigation is better for the company.

这是一个非常奇怪的情况，因为本质上，再次地，你遇到了这种情况：股东对州政府不满，因为州政府不允许更多股东资金流入个人口袋。这是一个非常奇怪的情况，等等。股东诉讼总体上总是让我觉得是一个有点有趣的领域。记得二十五年前，当我有时买卖个股时，某只股票业绩未达预期。然后突然你会收到一封邮件，像是：这家公司正在提起诉讼。

It is a very strange situation because essentially, again, you have this situation in which the shareholders were upset at the state for not allowing more shareholder money to go into the pocket of one individual person. That's a very strange situation, etcetera. Shareholder lawsuits always strike me as a little bit interesting field in general. Remember back twenty five years ago when I sometimes used to buy and trade individual stocks and a stock would miss earnings. And then suddenly you get an email, it's like, This company is filing suit.

就像是在说：我为什么要参与对我作为共同所有者之一的公司提起诉讼？这真的对我有利吗？还是只对律师有利？即使抛开这些利益冲突问题，总体上我也从未完全搞清楚这一点。

It's like, Why do I want to take a part in a lawsuit against this company that I am a co owner of? Does this actually benefit me or does this benefit anyone other than the lawyer? I've never been totally clear on that either, just in general, even setting aside sort of these conflict questions.

是的。我的意思是，这是一个非常有争议的问题。但对于大多数这类诉讼，我的意思是，根据联邦证券法提起的欺诈诉讼与根据州法律提起的违反信托义务诉讼（这是特拉华州处理的类型）之间存在区别。在那里，我的意思是，当有这样的诉讼时，任何赔偿都应该由董事向股东或公司支付。所以这是理论上的金钱利益。

Yeah. I mean, that's it's a very debated question. But for most of these suits, I mean, there is a difference between a suit for fraud under the federal securities laws and a state law suit for breach of fiduciary duty, which is what Delaware handles. And there, I mean, when there's a lawsuit like that, any payment is supposed to come from the directors to the shareholders or to the company. So that's the that's the theoretical monetary benefit.

但董事通常不会自掏腰包支付。他们有保险。所以如果他们支付，实际上是保险支付。猜猜谁为保险买单？是公司。

But directors usually don't pay out of pocket. They've got insurance. So if they pay, it's the insurance. And guess who pays for the insurance? Corporation does.

现在你对股东诉讼会有不同的看法了，乔。

Now you're gonna think about shareholder lawsuits differently, Joe.

或者就简单说个'是的'。反正我还是不明白。好吧，继续说吧。

Or just a yeah. I still don't anyway. Okay. Keep going.

好的。你之前提到过这一点，但特拉华州看到公司迁往其他地方时并非完全无动于衷。这是否会导致各州在股东权利方面展开一场'竞相触底'的竞争，就像大家互相较劲——如果你降低标准或改变这里的平衡，我也会做同样的事，最终所有人都竞相降低标准？

Alright. So you touched on this earlier, but Delaware isn't exactly standing still while it sees companies move elsewhere. Is this just gonna result in a sort of race to the bottom in terms of shareholder rights where states are just like, well, if you drop your standards or if you alter the balance here, I'm gonna do the same thing, and everyone just kind of races to the bottom?

我认为这正是我们亲眼目睹的现象。内华达州和德克萨斯州本质上是在推销他们的法律，声称其能设置障碍阻止股东诉讼。而特拉华州也是这么做的——它修改法律设置了更多障碍。只不过它的做法更隐晦，这正是为什么我认为竞争仍在继续，因为特拉华州不想公开表态说'就这样了'。

I think that's what we're absolutely seeing. I mean, Nevada and Texas are essentially selling their law as creating barriers to shareholder lawsuits. And that's what Delaware did. It changed its law to put up more barriers. Now it did so more subtly, which is exactly why I think there's still like this race because Delaware didn't wanna like openly say, no, that's it.

他们只是在阻止股东诉讼。所以他们写了很多复杂的条文，但归根结底，这些条文都达到了同样的效果。这三个州都使得股东提起诉讼变得极其困难，甚至几乎不可能——除非是在最严重的欺诈情况下。我认为我们正处于这场竞争中，而且正在实时见证它。

We're just barring shareholder lawsuits. So they wrote a lot of words and they're complex words, but ultimately, they they all come out to the same thing. All three states have made it much, much harder, if not virtually impossible for anything but in the most fraudulent circumstances, shareholders to bring claims. I think we're at that race. We're watching it right now.

我可以理解为什么上市公司董事会或上市公司会说：好吧，我们希望处于一个让股东更难提起诉讼的司法管辖区。这种考量是否因公司成熟度而异？比如早期初创公司？正如我所说，我认识一些初创圈的人，他们最先做的事情之一就是在特拉华州注册公司。

I could understand why a public company board or a public company would say, Okay, we want to be in a jurisdiction where it's much harder for shareholders to bring lawsuits, etcetera. Is the calculus different depending on the maturity of the company? Could you say an early stage startup? Like I said, I've known people in the startup space. One of the first things they do is incorporate in Delaware.

在这种情况下，从法律角度而言，风险投资公司是否比上市公司股东更深度地掌控公司？尽管名义上他们都是股东，并且存在独立的董事会。

In those situations, maybe from the legal perspective, did the VCs own the company in a more deep way than public company shareholders do, even though nominally they're all just shareholders and there's a separate board?

是的。这类股东诉讼在风险投资支持的公司或小型企业中极为罕见，这主要是因为股东的身份构成。这些股东大多是内部人士或风投的朋友，公司不想得罪他们。而且他们可能签署了仲裁协议，这本身就阻止了任何形式的诉讼。

Yes. And a shareholder litigation this kind of shareholder litigation is extremely rare in VC backed or smaller companies, and and that's because who the shareholders are. I mean, the shareholders are largely insiders or friends of DC. They don't wanna anger them. They may have signed arbitration agreements that would prevent any kind of lawsuit anyway.

所以这个诉讼问题更多是上市公司的问题。不过，特拉华州也解决了一些真正困扰初创企业界的问题。例如，很多初创企业喜欢制定股东协议，赋予某个股东实质性的治理权——不是因为他们作为股东可以投票，而是因为他们拥有合同权利来规定：董事会，未经我批准不得进行合并；董事会，未经我批准不得承担债务。而几年前，特拉华州的一个法院判决（我认为根据当时的特拉华州法律非常正确）表示，在公司制企业中不能这样做。

So this issue of litigation is much more of a public company problem. That said, there were some issues that were really bugging the startup community that Delaware fixed as well. For example, a lot of startups like to have shareholder agreements where one shareholder is given essentially governance rights, not because they're a shareholder and they can vote their shares, but because they have a contractual right to say, board, you're not allowed to merge unless I approve. Board, you're not allowed to take on debt unless I approve. And Delaware, a couple years ago, a court decision, I think very correctly under Delaware law at the time, said, well, you can't do that in a corporation.

董事会必须负责运营公司。你不能通过合同方式直接将治理权交给股东，说'这是你的合同，你可以批准所有董事会决策'。这确实吓坏了风投界，特拉华州立即通过授权这类股东协议作出了反应。

The board has to run the company. You can't just hand over governance rights to a shareholder by saying, well, here's your contract. You get to approve all board decisions. That really scared the VC community, and Delaware reacted immediately by authorizing those kinds of shareholder agreements.

Tracy，我认为将会出现一些非常有趣的公司治理问题。你知道，我们讨论过的一些案例中，AI初创公司被收购式雇佣，但并非所有价值都归于股东，或者根据员工身份不同而分配给不同类别的股东。我敢打赌，这将催生一些非常有趣的公司治理法律。

Tracy, I think there's gonna be some very interesting questions of corporate governance that come up. You know, some of these episodes that we've discussed where AI startups, the company gets acqui hired and not all the value gets accrued to shareholders or different class of shareholders depending on what employee you are. I bet there'll be some very interesting corporate governance law that comes out of this.

毫无疑问。而且你知道肯定会有某个州试图把自己推销为AI初创公司的注册地。

For sure. And you know there's gonna be some state that tries to pitch itself as, like, the place to incorporate AI startups.

AI初创公司。是的。

AI startup. Yeah.

好的。说到初创公司，如果Joe和我要注册成立OddLots，我想我们可能会成立有限责任公司(LLC)。不是l

Okay. So speaking of startups, if Joe and I were going to incorporate and become OddLots, I guess we'd be an LLC, maybe. Not l

l 是的。

l Yeah.

很可能会是这样。

It probably would be.

是的。好的。OddLots有限责任公司。而你是我们的律师，我们假设的律师，为我们提供法律建议。

Yeah. Okay. OddLots LLC. And you were our lawyer, our hypothetical lawyer giving us legal advice.

假设的。什么

Hypothetical. What

在这种情况下你会建议我们怎么做？我们应该在哪里注册？

would you advise us to do here? Where should we incorporate?

嗯，首先，有限责任公司（LLC）不是股份公司（corporation）。所以我只是想说明你们不会注册成股份公司。你们会是组建一个有限责任公司。但实际上，我会建议你们不要去特拉华州、内华达州或德克萨斯州。因为特拉华州在上市公司和风投支持的公司，比如专业化的初创企业中占主导地位。但它在小型企业，比如你知道的，普通的家族企业、普通的地方企业中并不占主导。

Well, so first of all, an LLC is not a corporation. So I just wanna you would not be incorporated. You would be organizing an LLC. But, actually, I would tell you not to go to Delaware, Nevada, or or Texas Because, Delaware dominates in public companies and VC backed companies, like professionalized startups. But it doesn't dominate in small like, you know, your average family business, your average local business.

它在那些领域根本不算主导，而且它的法律也不是为那种情况设计的。所以如果你们——我的意思是，你们是专业人士，但是，在一个小型的、基于人际关系的公司里，特拉华州的法律在某些方面过于冷酷无情。其他州的法律为本质上非律师化的、家族式的、朋友式的企业提供了更多的保护，可能更合适。

It does not dominate there at all, and its law is not designed for that. So if you I mean, you guys are professionals, but, you know, in a small relationship backed company, Delaware law is in in some ways too ruthless. The other states have a lot more protections for essentially non lawyer, family ish, friend ish businesses that might be more appropriate.

嗯，我不知道。我们可能…它可能会是

Well, I don't know. We might it might be

一项专业操作。我们可能会做大。

a professional operation. We could be big.

这可能是一项专业操作。我还有一个问题。美国拥有这种拼凑式的公司体系有多罕见？就像，如果我们去另一个国家，他们的司法选择权也是这样的吗？

It might be a professional operation. I just have one more question. How rare is The US for having this patchwork of corporate systems? They're like, if we went to another country, is their jurisdiction shopping the same way?

不。嗯，你看，要理解。我们就像欧洲的50个不同国家。你明白吗？所以欧洲，以前你不能像在美国那样做，在特拉华州注册公司，但所有业务运营都在别的地方。

No. Well, see, understand. We're like 50 different countries in Europe. It's like you know? So so Europe, you used to be that you couldn't do what we do in The United States where you incorporate in Delaware, but all your business operations are somewhere else.

哦。以前在欧洲，基本上是，但它是逐个国家来的。如果你的总部在一个国家，你应该在那个国家组织，不能混合搭配。欧洲改变了法律，但仍然理论上你可以在欧洲国家之间进行司法选择，你知道，把你的总部和所有运营放在一个地方，在另一个地方、另一个国家组织。但他们不这样做。

Oh. It used to be in Europe that essentially, it was but it's country by country. If you had your headquarters in a country, you were supposed to organize in that country and you couldn't mix and match. Europe changed the law, but it's still so that you could theoretically jurisdiction shop among European countries, you know, have your headquarters and all your operations in one place and organize in another place, another country. But they don't.

他们并没有那种常态。这被视为有点奇怪。所以对他们来说，你的运营地点很大程度上将决定管辖你实体的公司法。

They don't really have that norm. It's just viewed as sort of weird. So for them, where your operations are are largely gonna be the law, the corporate law that governs your entity.

有跨国司法选择吗？你能，比如，一家外国公司想在美国注册吗？

Is there transnational jurisdiction shopping? Could you get, you know, like a foreign company that wants to incorporate in The US?

嗯，是的。但你更可能遇到的是美国公司想在本国境外注册。

Well, yes. But you it's much more likely that a US company wants to incorporate outside the country's border.

爱尔兰之类的。

Ireland or something.

是的。所以对于其他类型的，你知道，税务问题。这在过去因为税务原因等等是个大问题。

Yeah. So for other kinds of, you know, tax. That used to be a big deal for tax reasons and so forth.

好的。安妮·利普顿，非常感谢您来到《Odd Lots》。真的很感激。太棒了。谢谢邀请我。

Alright. Anne Lipton, thank you so much for coming on Odd Lots. Really appreciate it. That was great. Thank you for having me.

乔，这太有趣了。我真的认为，总的来说，商业新闻或金融新闻对法律事务的报道不够充分。

Jo, that was so interesting. I really think I think business journalism in general or financial journalism doesn't cover legal stuff enough.

嗯，马特·莱文已经证明了这一点，因为他的通讯需求量巨大，正是因为他实际上是少数几个真正讨论衡平法院和所有这些事情的地方之一。但正如你所说，这证明了这一点。

Well, Matt Levine has proved it because there's a huge demand for his newsletter precisely because he's one of the few destinations that actually talks about the chancery and all this stuff. But to your point, this proves the point.

他是证明这一点的例外，证明

He's the exception that proves Proves

了这一点。

the point.

整个重点。还有会计

The entire point. And accounting

也是。那个也是。

as well. That too.

还有保险。

And insurance.

还有保险。

And insurance.

好吧。等等。我不会只是批评我们金融新闻界的同事。不。那其实挺有意思的。

Okay. Wait. I'm not gonna just criticize our colleagues in financial journalism. No. That was fascinating.

我确实觉得整个竞相逐底的现象，是的，出于显而易见的原因，有点令人担忧。我想，这有点像你之前讨论的网络效应。但一旦这个趋势开始滚动，似乎真的很难停下来。

I do find the whole race to the bottom Yeah. Idea a little bit concerning for obvious reasons. And I guess, like, it's sort of that network effect that you were discussing earlier. But once the the ball gets rolling in that direction, it just seems really hard to stop.

我只是同意。而且我认为这一点非常——埃隆的巨大影响力，以及所有视他为榜样的人，非常有趣。另一方面，没有多少CEO的崇拜文化如此强大，以至于人们渴望给他钱。所以，其他公司的股东是否愿意在某个州注册，他们是否会像当前研究不同那样，对非特拉华州注册的公司施加某种资本成本惩罚，这将是一个有趣的问题。但趋势已经开始滚动了。

It's just I agree. And I think this is something very the sheer influence that Elon has and all the people who look to him and see him as the model is very interesting. On the other hand, there are not many CEOs out there for whom the cult is so strong that people thirst to give him money. And so the question of whether shareholders of other companies want to be incorporated in states, whether they would actually, unlike the current research, inflict some sort of cost of capital penalty for non Delaware incorporated states is going to be an interesting question. But the ball is rolling.

一旦样本量

That's gonna be so interesting once the sample size

变得更大，

gets bigger,

你就能看到对股价的实际影响了。所以我理解你的观点，但可能会有股东说，如果公司不需要处理来自持有九股的股东的诉讼

and you can see the actual impact on stock prices. So I take your point, but there are shareholders who potentially would say, well, if a company doesn't have to deal with a lawsuit from, like, a shareholder who has Nine

九股。

nine shares.

是的。九股，也许这是件好事，就像是值得做出的权衡。

Yeah. Nine shares, maybe that's a good thing, and that's, like, a trade off worth making.

是啊。我不知道。我是说，他只有九股却拿到了这份薪酬方案。感觉像是他签了个协议。我会非常恼火。

Yeah. I don't know. I mean, I nine shares and he had this pay package. I feel seems like he signed a deal. I'd be so annoyed.

你能想象吗？你能想象如果你的薪酬方案因为某个只有九股的股东而被取消，你会多恼火吗？我的意思是

Could you imagine could you imagine how annoyed you would be if your pay package got canceled because of some shareholder with nine shares? I can't mean My

数百万的薪酬待遇，我会很恼火。

pay package of millions, I would be annoyed.

不管我多有钱，我都无法想象我的愤怒。即使我是世界上最富有的人，我也会对此非常恼火。

It doesn't matter how rich I am. I would cannot imagine my fury. It I would be the the richest person in the world. I would be so annoyed by that.

好的。既然我们已经惹恼了乔，我们就到此为止吧？

Okay. So now that we've annoyed Joe, shall we leave it there?

就到这里吧。

Let's leave it there.

好的。这是《All Thoughts播客》的又一期节目。我是特蕾西·阿拉维。你可以在特蕾西·阿拉维关注我。

Okay. This has been another episode of the All Thoughts Podcast. I'm Tracy Allaway. You can follow me at Tracy Allaway.

我是乔·维森塔尔。你可以在The Stalwart关注我。关注我们的制作人：克明·罗德里格斯@克明·阿门，达希尔·班尼特@Dashbot，以及凯尔·布鲁克斯@凯尔·布鲁克斯。想获取更多《Odd Lots》内容，请访问bloomberg.com/oddlots，我们有每日通讯和所有节目集，并且你可以在我们的Discord（discord.gg/oddlots）中全天候讨论所有这些话题。

And I'm Joe Wiesenthal. You can follow me at the Stalwart. Follow our producers, Kermin Rodriguez at Kermin Armen, Dashiell Bennett at Dashbot, and Kale Brooks at Kale Brooks. For more Odd Lots content, go to bloomberg.com/oddlots where we have a daily newsletter and all of our episodes, and you can chat about all of these topics twenty four seven in our Discord, discord.gg/oddlots.

如果你喜欢《Odd Lots》，喜欢我们深入探讨美国法律体系中的法律问题，那么请在你最喜欢的播客平台上给我们留下好评。请记住，如果你是彭博社订阅用户，你可以完全无广告地收听我们所有节目。你只需在苹果播客上找到彭博频道并按照那里的说明操作即可。感谢收听。

And if you enjoy Odd Lots, if you like it when we dig into legalities in The US legal system, then please leave us a positive review on your favorite podcast platform. And remember, if you are a Bloomberg subscriber, you can listen to all of our episodes absolutely ad free. All you need to do is find the Bloomberg channel on Apple Podcasts and follow the instructions there. Thanks for listening.

经营中小型企业是一项艰苦的工作。企业主需要确保他们的广告和他们一样努力。亚马逊流媒体电视广告帮助中小企业脱颖而出，呈现在人们已经在观看的优质内容和节目上。借助亚马逊广告，您不必为了覆盖范围而牺牲相关性。数万亿的浏览、购物和流媒体洞察帮助您触达正确的受众，而衡量工具则向您展示哪些效果最佳，帮助您实时优化广告活动。

Running small and medium sized businesses is hard work. Business owners need to be sure that their ads are working just as hard as they do. Amazon streaming TV ads helps put small and medium businesses front and center on premium content and shows that people are already watching. With Amazon ads, you don't have to sacrifice relevance for reach. Trillions of browsing, shopping, and streaming insights help you reach the right audience, And measurement tools show you what's working the hardest to help you optimize your campaign in real time.

借助亚马逊广告获得竞争优势。

Gain the edge with Amazon Ads.

每个企业都有雄心壮志。PayPal Open 是一个旨在帮助您通过商业贷款实现增长、扩大业务并触达全球数亿 PayPal 客户的平台。您的客户可以通过 PayPal、Venmo、Pay Later 以及所有主要信用卡以他们想要的方式付款，让您可以专注于扩大规模。当需要发展时，有一个适用于所有企业的平台——PayPal Open。

Every business has an ambition. PayPal Open is the platform designed to help you grow into yours with business loans so you expand and access to hundreds of millions of PayPal customers worldwide. And your customers can pay all the ways they want with PayPal, Venmo, Pay Later, and all major cards so you can focus on scaling up. When it's time to get growing, there's one platform for all business. PayPal Open.

立即前往 paypalopen.com 开始发展。贷款需经批准，且仅在可用地区提供。

Grow today at paypalopen.com. Loans subject to approval in available locations.

财务投资听起来是什么样子？一位退休者进行跨州旅行？有人制定了新的长期目标？一名学生刚刚起步？凭借超过 450 只 ETF，iShares 让您有机会接触无数的市场机遇。

What does being financially invested sound like? A retiree on a cross country drive? Someone with new long term goals? A student getting their start? With over 450 ETFs, iShares gives you access to countless market opportunities.

BlackRock 旗下的 iShares。市场尽在您掌握。访问 www.ishares.com 查看观点，其中包括投资目标、风险、费用、开支以及其他信息，投资前请仔细阅读和考虑。风险包括本金损失，由 Finra 成员 BlackRock Investments LLC 编制。

IShares by BlackRock. The market is yours. Visit www.ishares.com to view perspectives, which includes investment objectives, risks, fees, expenses, and other information that you should read and consider carefully before investing. Risk includes principal loss prepared by BlackRock Investments LLC member Finro.