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David J. Berger
Partner
Litigation
Palo Alto
San Francisco

D650-320-4901

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  • Corporate Governance and Activism Expertise

    David represents directors, enterprises, and stockholders with respect to fiduciary duty and corporate control issues.

  • Trial and Appellate Litigation Experience

    David has served as lead trial and/or appellate counsel in high-profile M&A and securities cases.

  • Respected Among Corporate Governance Colleagues

    He is the president of the American College of Governance Counsel and has been honored as a "BTI Client Service All-Star."

  • Business and Community Leadership Roles

    David serves as a director on several business and community organization boards, including the Long Term Stock Exchange, the San Francisco Symphony, and the Wildlife Conservation Network.

David Berger’s practice is an unusual blend of corporate governance advisory work and litigation, and he is nationally recognized for his expertise in both the boardroom and the courtroom. David advises business leaders on all aspects of complex M&A, governance, and litigation matters, both across the country and internationally, and he has served as lead counsel on many of the most novel such matters over the last 25 years.

David is president of the American College of Governance Counsel. He also serves as an advisor to the American Law Institute’s Restatement on Corporate Governance project and is co-chair for the Annual Rome Conference on AI, Ethics and Governance.

David is a senior fellow at both NYU’s Institute for Corporate Finance & Governance and Stanford’s Rock Center for Corporate Governance. He has taught M&A Litigation at both Harvard and NYU law schools and has been a visiting lecturer at a number of other leading law schools, including Duke, Stanford, Tel Aviv University, and LUISS University in Rome. David writes and speaks frequently on corporate law and governance matters, and his articles have appeared in a number of scholarly journals and business publications.

David has been at Wilson Sonsini since 1989. Among other leadership roles, he has been a member of the firm’s board of directors, served as chair of the Policy Committee and chair of the Pro Bono Committee, and is a long-time board member of the firm’s venture capital fund.

David is a director of the Long-Term Stock Exchange, where he chairs the Nominating & Governance Committee, and previously served on the board of directors of the California Culinary Academy (NASDAQ:COOK). He also serves on many civic boards and has an active pro bono practice.

Experience

David Berger’s practice is an unusual blend of corporate governance advisory work and litigation, and he is nationally recognized for his expertise in both the boardroom and the courtroom. David advises business leaders on all aspects of complex M&A, governance, and litigation matters, both across the country and internationally, and he has served as lead counsel on many of the most novel such matters over the last 25 years.

David is president of the American College of Governance Counsel. He also serves as an advisor to the American Law Institute’s Restatement on Corporate Governance project and is co-chair for the Annual Rome Conference on AI, Ethics and Governance.

David is a senior fellow at both NYU’s Institute for Corporate Finance & Governance and Stanford’s Rock Center for Corporate Governance. He has taught M&A Litigation at both Harvard and NYU law schools and has been a visiting lecturer at a number of other leading law schools, including Duke, Stanford, Tel Aviv University, and LUISS University in Rome. David writes and speaks frequently on corporate law and governance matters, and his articles have appeared in a number of scholarly journals and business publications.

David has been at Wilson Sonsini since 1989. Among other leadership roles, he has been a member of the firm’s board of directors, served as chair of the Policy Committee and chair of the Pro Bono Committee, and is a long-time board member of the firm’s venture capital fund.

David is a director of the Long-Term Stock Exchange, where he chairs the Nominating & Governance Committee, and previously served on the board of directors of the California Culinary Academy (NASDAQ:COOK). He also serves on many civic boards and has an active pro bono practice.

Focus Areas
Recent Insights
Alerts
Delaware Court of Chancery Addresses Fiduciary Duty Claims Arising from Reincorporation to Nevada
On February 20, 2024, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery issued an opinion refusing to dismiss stockholder claims challenging the reincorporation of TripAdvisor from Delaware to Nevada and determining that the entire fairness standard of judicial review, rather than the business judgment rule, applied to the decision to reincorporate. The essence of the court’s determination was that the purpose of the reincorporation was to reduce stockholder litigation risks for its fiduciaries and that a reduction in the litigation rights of stockholders in a controlled company creates a non-ratable benefit for the controller. Accordingly, the standard of review governing the transaction is entire fairness unless the company uses some type of procedural protections, such as approval by an independent board committee and/or minority stockholders, to lower the standard of review by simulating an arm’s-length negotiation. Because no such steps were taken here, the court denied the defendants’ motion to dismiss and allowed the case to proceed under the entire fairness standard.
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Alerts
Delaware Court of Chancery Issues Decision on Disney Board’s Obligations in the DeSantis Dispute
On June 27, 2023, Vice Chancellor Lori Will of the Delaware Court of Chancery issued a much-anticipated decision addressing the obligations of the board of directors of The Walt Disney Company (Disney) in overseeing Disney’s response to Governor Ron DeSantis and the “Don’t Say Gay” bill, or HB 1557. In particular, the court rejected a books and records demand by a Disney stockholder seeking to investigate wrongdoing on the basis that the Disney board had breached its fiduciary duties by placing its own personal beliefs ahead of the interests of the corporation and its stockholders and taking positions that impaired the company’s value. The litigation reflects the pressures increasingly confronting corporations, and the landmark decision provides valuable guidance to boards in navigating environmental, social, and governance (ESG) issues and controversies.
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Recent Events
Affiliated Programs
Second Annual Rome Conference on AI, Ethics and Corporate Governance
The Second Annual Rome Conference on AI, Ethics and Corporate Governance will again bring together senior executives from leading AI companies, as well as large enterprises deploying AI, with policymakers, scholars, ethicists and lawyers to holistically consider the challenges facing the ethics and governance of AI.
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Affiliated Programs
Skytop - Shareholder Activism Summit 2025
Join over 200 shareholder engagement, communications, and industry thought leaders as they discuss how ongoing shareholder engagement and activism play a vital role in affecting share value, how activist investors cultivate relationships with companies to positively influence sustained value creation, and the latest campaign practices of activists, their outcomes, and how boards and executives work constructively toward improved stock performance.
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