On October 6, 2026, the Delaware Supreme Court affirmed a decision of the Court of Chancery allowing ATG Capital Management’s four board nominees to stand for election at the annual meeting of Empery Digital Inc. (Nasdaq: EMPD), scheduled for October 14, 2026. The Supreme Court ruled one day after oral argument and less than a week before the meeting.
In its August 28, 2026 decision, the Court of Chancery found that ATG Capital’s nomination notice was valid and that Empery Digital’s board breached its fiduciary duties by rejecting it. On appeal, the company’s directors argued that ATG had failed to disclose an alleged voting arrangement with another stockholder. The Supreme Court left the Chancery judgment in place.
ATG Capital and its affiliates own about 4.5 million shares, roughly 16% of the company, making it the largest non-affiliated stockholder. Under the SEC’s universal proxy rules, its nominees will appear alongside the company’s candidates on both proxy cards, and the three leading proxy advisory firms, ISS, Glass Lewis, and Egan-Jones, have recommended that stockholders use ATG’s card. The ruling reinforces Delaware’s protection of the stockholder franchise and is a reminder to boards that nomination requirements must be applied consistently with their fiduciary duties, so that stockholders keep a real choice in contested elections.