Recent Posts

Challenge to Advance Notice Bylaw Given Expedited Review
Posted on 26 Apr 2012 by Francis G.X. Pileggi

Icahn Partners LP v. Amylin Pharmaceuticals, Inc ., C.A. No. 7404-VCN (Del. Ch. Apr. 20, 2012). Issue Addressed: Whether a challenge to an advanced notice bylaw should be given expedited treatment. That is, whether a colorable claim for interfering... Read More

Delaware Court of Chancery Hears Fee-Shifting Bylaws Argument
Posted on 25 Aug 2014 by Francis G.X. Pileggi

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 subscribers] , highlighted on these pages, in which the court... Read More

Delaware Legislative Revision Proposed to Restrict Fee-Shifting Bylaws Introduced
Posted on 28 May 2014 by Kevin M. LaCroix

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... Read More

The Latest on Arbitration Clauses in Corporate Bylaw Provisions
Posted on 20 May 2014 by Kevin M. LaCroix

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... Read More

Delaware Proposes New Fee-Shifting and Forum Selection Legislation
Posted on 10 Mar 2015 by Francis G.X. Pileggi

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... Read More

IPO Companies and Fee-Shifting Bylaws
Posted on 14 Oct 2014 by Kevin M. LaCroix

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... Read More

Exclusive Forum Appeal
Posted on 18 Oct 2013 by Brian JM Quinn

Am I the only one slightly disappointed that the plaintiffs in the Chevron exclusive forum bylaw provision case decided not to pursue their appeal to the Delaware Supreme Court? I'm interested in the question of how the court would treat forum provisions... Read More

Delaware Legislature Passes Fee-Shifting Bylaw Prohibition — What Questions Remain?
Posted on 15 Jun 2015 by Kevin M. LaCroix

In a late night session on June 11, 2015, the Delaware House of Representatives overwhelmingly passed S.B. 75, which prohibits Delaware stock corporations from adopting “loser pays” fee-shifting bylaws and which confirms that Delaware corporations... Read More

More on ATP and Fee-Shifting
Posted on 18 Nov 2014 by Brian JM Quinn

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... Read More

Though Delaware Legislature Has Tabled Action, Upcoming Judicial Review of Fee-Shifting Bylaws Seems Likely
Posted on 28 Jul 2014 by Kevin M. LaCroix

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... Read More

Delaware Drops Fee-Shifting Bar
Posted on 20 Jun 2014 by Brian JM Quinn

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... Read More

Delaware Corporate Bylaws: Even If the Company Can’t Fee Shift, It Can Still Forum Select
Posted on 3 Jun 2014 by Kevin M. LaCroix

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... Read More

Another Litigation Reform Bylaw Variant: The Minimum Stake to Sue Bylaw
Posted on 30 Jan 2015 by Kevin M. LaCroix

In prior posts , I have noted the growing phenomenon of companies adopting various types of bylaws as a self-help version of litigation reform. Delaware’s courts have already approved the facially validity of both forum-selection bylaws and of fee... Read More

Delaware Court of Chancery Upholds Bylaws with Forum Selection Clause
Posted on 26 Jun 2013 by Francis G.X. Pileggi

Boilermakers Local 154 Retirement Fund v. Chevron Corporation , C.A. No. 7220-CS (Del. Ch. June 25, 2013) [ an enhanced version of this opinion is available to subscribers ]. Issue Addressed : Enforceability of bylaws adopted by the Board... Read More

Proposed Addition to Delaware Corporate Statute Regarding Fee Provisions in Bylaws
Posted on 27 May 2014 by Francis G.X. Pileggi

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... Read More