Under Delaware law, a corporation’s board, its stockholders, and an LLC’s members can all take formal action by written consent in lieu of a meeting, but each pathway has its own threshold and its own procedural rules. Boards need unanimous written consent from every director. Stockholders need signatures representing the same voting power that would have carried the action at a fully attended meeting, delivered inside a 60-day window. LLCs largely follow whatever the operating agreement says, with a majority-consent default when the agreement is silent.
The mechanism saves time and coordination, and it is used constantly in closely held companies. The rules around who signs, how consents are delivered, when the clock runs, who gets notice, and how the paperwork is kept are where companies get into trouble.
Board Action Requires Every Director’s Signature
Section 141(f) of the Delaware General Corporation Law lets a board take any action by written consent that it could have taken at a meeting, on one condition: every director consents in writing or by electronic transmission.1Delaware Code Online. Delaware Code Title 8 Chapter 1 – General Corporation Law, Subchapter IV Unanimity is not optional. One holdout, one unreachable director, one director who declines, and the board has to hold an actual meeting.
This is the sharpest departure from meeting practice, where a majority of a quorum is usually enough. It’s also the most common reason boards think they have consent action locked down and don’t.
Section 141(f) does allow a director to sign a consent that takes effect at a future time or upon a specified event, provided the effective date falls within 60 days of when the director gave the instruction. The director must still be on the board when the consent becomes effective, and the consent can be revoked at any time before then.1Delaware Code Online. Delaware Code Title 8 Chapter 1 – General Corporation Law, Subchapter IV
Before relying on board consent, check both the certificate of incorporation and the bylaws. Either document can restrict or prohibit board action by written consent, and any restriction stated there controls over the statutory default.
Stockholder Consent: Threshold and the 60-Day Window
Stockholder consent works differently. Section 228(a) does not demand unanimity. It requires signatures from holders of the minimum number of shares that would be needed to approve the action at a meeting where every share entitled to vote was present.2Justia. Delaware Code 228 – Consent of Stockholders or Members in Lieu of Meeting For a routine matter carried by simple majority, holders of just over 50% of the voting power can act. If the charter or bylaws require a supermajority for the action, the consent threshold rises to match.
All required consents must be delivered to the corporation within 60 days of the first consent’s delivery. Delivery starts the clock, not signing. If the corporation has not received enough valid consents by day 60, the action fails and the process has to begin again.2Justia. Delaware Code 228 – Consent of Stockholders or Members in Lieu of Meeting
A stockholder can, like a director, sign a consent that takes effect at a future date or upon a specified event, as long as the effective time falls within 60 days of the instruction. Consents remain revocable until they become effective unless the consent itself says otherwise.
The certificate of incorporation can restrict stockholder written consent, or eliminate it entirely.2Justia. Delaware Code 228 – Consent of Stockholders or Members in Lieu of Meeting Many public company charters do exactly that to block hostile action outside a formal meeting.
How Consents Have to Be Delivered
A signed consent has no legal effect until it reaches the corporation through one of the delivery methods in Section 228(d): hand delivery or certified mail to the registered office in Delaware, delivery to the principal place of business, delivery to an officer or agent with custody of the corporate minutes, or transmission to an information processing system the corporation has designated for receiving consents.2Justia. Delaware Code 228 – Consent of Stockholders or Members in Lieu of Meeting
Electronic deliveries must include information letting the corporation determine both when the consent was delivered and who gave it. Copies, facsimiles, and other reliable reproductions of a signed consent can stand in for the original.
Setting the Record Date
The board can fix a record date to identify which stockholders are entitled to consent. That record date can’t come before the resolution setting it, and it can’t be more than 10 days after. If the board doesn’t set one, Section 213 supplies a default: when no prior board action is required, the record date is the first date a signed consent is delivered to the corporation; when prior board action is required, it is the close of business on the day the board adopts the underlying resolution.3Justia. Delaware Code 213 – Fixing Date for Determination of Stockholders of Record
LLC Members: the Operating Agreement Runs the Show
LLCs are governed first and foremost by their operating agreements. Section 18-302(c) of the Delaware LLC Act allows the operating agreement to address consent without a meeting, record dates, quorum, proxies, and notice however the members want. Whatever the agreement says on these questions controls.4Justia. Delaware Code 6-18-302 – Classes and Voting
Where the agreement is silent, Section 18-302(d) supplies the default: members can act without a meeting, without prior notice, and without a vote, provided that members holding at least the votes needed to authorize the action at a fully attended meeting consent in writing, by electronic transmission, or by any other lawful means.4Justia. Delaware Code 6-18-302 – Classes and Voting There is no statutory 60-day window for LLCs, though many operating agreements add their own timing rules.
Operating agreements often require unanimous consent for major matters like admitting members, amending the agreement itself, or selling substantially all assets, while allowing majority consent for ordinary business. Some remove member voting entirely from certain categories of decisions. Read the agreement first.
Notice to Stockholders Who Didn’t Sign
When stockholders act by less than unanimous written consent, the corporation must give prompt notice of the action to every stockholder entitled to notice who did not sign.2Justia. Delaware Code 228 – Consent of Stockholders or Members in Lieu of Meeting If every stockholder signs, no notice is required, because no one was left out.
The statute doesn’t pin “prompt” to a specific number of days. Courts generally expect notice within a reasonable time after the consent becomes effective. Section 228(e) also permits the corporation to satisfy the notice obligation through a notice of internet availability of proxy materials under SEC rules, which helps when the stockholder base is large.
The LLC Act does not impose an equivalent notice requirement. Whether members who didn’t sign have to be told depends on the operating agreement.
Filing the Consents With the Corporate Records
After board action by written consent, Section 141(f) requires the consents to be filed with the minutes of the board proceedings, in the same format as the minutes themselves.1Delaware Code Online. Delaware Code Title 8 Chapter 1 – General Corporation Law, Subchapter IV The consents become part of the permanent corporate record.
Section 224 allows corporations to keep minutes, stock ledgers, and other records electronically or through database systems, as long as the records can be converted into clearly legible paper form within a reasonable time and produced on request by anyone entitled to inspect them.5Justia. Delaware Code 224 – Form of Records
For LLCs, Section 18-305 gives each member the right to obtain information about the business and finances of the company, tax returns, the operating agreement, and other information that is just and reasonable.6Justia. Delaware Code 6-18-305 – Access to and Confidentiality of Information; Records Written consents documenting member action are within the scope of records members can demand to see. An LLC that hasn’t kept them may struggle to prove a decision was authorized.
Proxies and Electronic Signatures
A stockholder does not have to sign a consent personally. Section 212(b) lets a stockholder authorize another person to give consent on their behalf by proxy. Unless the proxy says otherwise, it expires three years from its date. A proxy delivering a consent electronically must comply with Section 212(c), including information that identifies the person giving consent.7Delaware Code Online. Delaware Code Title 8 Chapter 1 – General Corporation Law, Subchapter VII
Electronic signatures on written consents are valid under Delaware’s Uniform Electronic Transactions Act, which defines an electronic signature as an electronic sound, symbol, or process attached to or associated with a record and executed or adopted with the intent to sign.8Delaware Code Online. Delaware Code Title 6 Chapter 12A – Uniform Electronic Transactions Act Consents signed through commercial e-signature platforms are generally enforceable, provided the signatory’s identity and intent are documented.
Public Companies Have an Extra 20-Day Federal Wait
Public companies face a federal overlay on top of Delaware law. Under SEC Regulation 14C, a public company taking action by written consent without soliciting proxies must file a Schedule 14C information statement and distribute it to all stockholders of record at least 20 calendar days before the corporate action can take effect.9eCFR. 17 CFR 240.14c-2 – Distribution of Information Statement
That 20-day waiting period applies no matter what Delaware’s timing rules would otherwise allow. Combined with the fact that many public company charters prohibit stockholder consent action outright, written consent is far more common in private and closely held companies than in public ones.
What Happens When a Consent Is Defective
A defective written consent puts the underlying action at risk. A board consent missing even one director’s signature is invalid on its face. A stockholder consent that falls short of the required voting threshold, or that gathers the last signature after day 60, has no legal effect. If the company has already acted as though the consent were valid, unwinding the action can be costly.
Written consent challenges typically land in the Delaware Court of Chancery. In Espinoza v. Zuckerberg, the court held that a controlling stockholder could not ratify a self-dealing transaction informally; ratification had to come through a vote at a meeting or a written consent complying with Section 228, because those formalities are what confirm precisely what action was taken and give notice to stockholders who didn’t participate.10Justia. Espinoza v. Zuckerberg Fiduciary duty claims can also survive alongside procedural ones, as the Delaware Supreme Court allowed in Gantler v. Stephens where directors were alleged to have rejected a sale opportunity in favor of a reclassification that benefited them.11FindLaw. Gantler v. Stephens, 965 A.2d 695 (2009)
Most written consent problems are not about ambiguity in the law. They come from skipping a step under time pressure. A short internal checklist prevents almost all of them:
- Confirm the certificate of incorporation, bylaws, or operating agreement permits consent action for this decision.
- Identify the correct signers and the required voting threshold.
- Set or confirm the record date for stockholder consents.
- Use one of the statutory delivery methods.
- Collect all consents within 60 days of the first delivery (for stockholder consents) or within any applicable operating agreement window.
- File the consents with the minutes.
- Send prompt notice to non-consenting stockholders when the consent was not unanimous.