LexisNexis® Legal Newsroom
Delaware Supreme Court Upholds Fee-Shifting Provision in Bylaws

ATP Tour, Inc. v. Deutscher Tennis Bund , Del. Supr., No. 534, 2013 (May 8, 2014) [ an enhanced version of this opinion is available to lexis.com subscribers ]. Momentous Issue Addressed : The Delaware Supreme Court decided certified questions of law for the District of Delaware regarding whether...

The Latest on Arbitration Clauses in Corporate Bylaw Provisions

In a recent post , I noted the Delaware Supreme Court’s ruling upholding the validity of bylaw provisions shifting the costs of litigation to an unsuccessful intra-corporate litigation claimant, which is the latest in a series of judicial decisions in which courts have recognized the authority...

Proposed Addition to Delaware Corporate Statute Regarding Fee Provisions in Bylaws

A proposed new addition as well as related amendments to the Delaware General Corporation Law would limit the impact of a recent Delaware Supreme Court decision in ATP Tours, Inc. v. Deutscher Tennis Bund (No. 534, 2013, May 8, 2014), highlighted on these pages [ an enhanced version of this opinion is...

Delaware Legislative Revision Proposed to Restrict Fee-Shifting Bylaws Introduced

As discussed in a recent post ( here ), in a May 8, 2014 decision the Delaware Supreme Court upheld the facially validity of a nonstock corporation’s bylaw provision shifting attorneys’ fees and costs to unsuccessful plaintiffs in intra-corporate litigation. Because the court’s holding...

Delaware Corporate Bylaws: Even If the Company Can’t Fee Shift, It Can Still Forum Select

In light of the recent legislative initiative to restrict Delaware stock corporations’ use of fee-shifting bylaws, companies incorporated in Delaware have, as described in a recent Law 360 article ( here , subscription required) a “smaller more defined toolbox” to reduce the burdens...

Delaware Drops Fee-Shifting Bar

A couple of weeks ago, it looked the stars were aligning in a once in a generation way that would have the plaintiffs and defendants bar stand behind an unusual amendment to the Delaware code. That amendment would effectively prohibit firms from adopting fee-shifting bylaws. Following ATP, it became...

Though Delaware Legislature Has Tabled Action, Upcoming Judicial Review of Fee-Shifting Bylaws Seems Likely

The Delaware Supreme Court stirred up quite a bit of controversy earlier this year in the ATP Tours, Inc. v. Deutscher Tennis Bund case when it upheld the facial validity of a fee-shirting by law [an enhanced version of this opinion is available to lexis.com subscribers] . The bylaw provided that an...

Delaware Court of Chancery Hears Fee-Shifting Bylaws Argument

After the Delaware Supreme Court decision in ATP Tour, Inc. v. Deutscher Tennis Bund , Del. Supr., No. 534, 2013 (May 8, 2014) [an enhanced version of this opinion is available to lexis.com subscribers] , highlighted on these pages, in which the court upheld fee-shifting bylaws, a number of companies...

Update on Fee-Shifting Bylaw Issue in Pending Delaware Court of Chancery Case

Recent activity in the Delaware Court of Chancery has followed the Delaware Supreme Court’s May 2014 decision in ATP Tour, Inc v. Deutscher Tennis Bund , 91 A.3d 554 (Del. 2014), highlighted on these pages, which upheld a fee-shifting bylaw, at least in principle [ an enhanced version of this opinion...

Oklahoma Legislature Adopts Derivative Litigation Fee-Shifting Provision

One of the most interesting recent developments has been the onset of innovative litigation reform efforts in the form of bylaw revisions. Among the most intriguing of these efforts involves fee shifting bylaws, whereby an unsuccessful claimant in intracorporate litigation must pay the other party’s...

IPO Companies and Fee-Shifting Bylaws

One of the more interesting recent developments in the D&O liability arena has been the emergence of issues surrounding fee-shifting bylaws. As readers will recall, in May 2014, the Delaware Supreme Court in the ATP Tours case upheld the validity of a non-stock corporation’s bylaw imposing...

Two Legal Surveys: Foreign Disputes in U.S. Courts and Fee-Shifting Bylaws

An ever-present anxiety for globally-active non-U.S. companies is the possibility that they might find themselves having to deal with litigation in U.S. courts. This concern is warranted because certain attributes of the U.S. legal system – including the absence of loser pays attorneys’ fee...

More on ATP and Fee-Shifting

Stephen Bainbridge weighs in on fee-shifting bylaws and makes the argument that they are necessary to resolve the litigation crisis : There is a serious litigation crisis in American corporate law. As Lisa Rickard recently noted, “where shareholder litigation is reaching epidemic levels. Nowhere...

Battle Builds in Delaware Over Fee-Shifting Bylaws

Earlier this year, after the Delaware Supreme Court upheld the facial validity of fee-shifting bylaws in the case of ATP Tour, Inc. v. Deutscher Tennis Bund (as discussed here ), a legislative initiative quickly emerged to restrict the case’s holding to Delaware non-stock companies. However, the...

Delaware Proposes New Fee-Shifting and Forum Selection Legislation

Legislation is being proposed to ask the Delaware Legislature to limit the ability of corporations to adopt fee-shifting provisions in their charter and bylaws, but to provide additional support for adopting forum selection clauses in those same corporate documents. The proposed legislation is available...

A Q&A with Mark Lebovitch of Bernstein Litowitz: A Plaintiffs’ Counsel’s Perspective on the Fee-Shifting Bylaw Debate

One of the more significant recent developments in the corporate and securities litigation arena has been the emergence of the debate over fee-shifting bylaws following the Delaware Supreme Court’s May 2014 decision in ATP Tour, Inc. v. Deutscher Tennis Bund [ an enhanced version of this opinion...