1. Within thirteen days after the decision in Shaffer, the Delaware legislature amended its laws to provide that every nonresident who is elected or appointed a director of a Delaware corporation after September 1, 1977, shall “be deemed” to have consented to the appointment of the corporation’s registered agent in Delaware, or, if there is no registered agent, of the Secretary of State of Delaware, as his agent for service of process in any Delaware action based on violation of the director’s duties as director after September 1, 1977. 10 Del. Code Ann. tit. 10 § 3114. The constitutionality of the section was upheld by the Supreme Court of Delaware in Armstrong v. Pomerance, 423 A.2d 174 (Del. 1980), a suit against nonresidents whose sole contact with Delaware was their status as directors of a Delaware corporation.

See also Stearn v. Malloy, 89 F.R.D. 421 (E.D. Wis. 1981) (reaching the same conclusion under a similar Wisconsin statute). In 2004, the Delaware consent-to-service statute was extended to high officers of Delaware corporations (such as the president, treasurer, or CEO).

Do you agree that statutes subjecting nonresident officers and directors to jurisdiction in the state of the company’s incorporation comports with due process?