Corporate

Recent Posts

Two Legal Surveys: Foreign Disputes in U.S. Courts and Fee-Shifting Bylaws
Posted on 3 Nov 2014 by Kevin M. LaCroix

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... Read More

A Q&A with Mark Lebovitch of Bernstein Litowitz: A Plaintiffs’ Counsel’s Perspective on the Fee-Shifting Bylaw Debate
Posted on 10 Apr 2015 by Kevin M. LaCroix

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... 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 lexis.com 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

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

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

Proposed Addition to Delaware Corporate Statute Regarding Fee Provisions in Bylaws
Posted on 27 May 2014 by Doug Esten

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

Battle Builds in Delaware Over Fee-Shifting Bylaws
Posted on 1 Dec 2014 by Kevin M. LaCroix

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... Read More