In Freedman v. Adams,58 A.3d 414 (Del. 2013) (No. 230, 2012), the Delaware Supreme Court en banc held that a corporate board’s decision to pay executive bonuses without adopting a so-called “Section 162(m) plan” that could make the bonuses tax deductible, did not state a claim for waste.  The plaintiff shareholder charged that the company would have saved approximately $40 million in taxes if it had adopted a Section 162(m) plan.  The company stated in its proxy materials that the board had considered a Section 162(m) plan, but that the board did “not believe that compensation decisions should be constrained” by the restrictions in that Section.  Upholding the trial court’s dismissal, the Delaware Supreme Court held that “[t]o recover on a claim of corporate waste, the plaintiffs must shoulder the burden of proving that the exchange was so one sided that no business person of ordinary, sound judgment would conclude that the corporation has received adequate consideration.”  Moreover, “where business judgment presumptions are applicable, the board’s decision will be upheld unless it cannot be attributed to any rational purpose.”  The court concluded that the “decision to sacrifice some tax savings in order to retain flexibility in compensation decisions is a classic exercise of business judgment.  Even if the decision was a poor one for the reasons alleged by [plaintiff], it was not unconscionable or irrational.”