Fee-Shifting

News & Analysis as of

Recent DGCL Amendments of Note

The Delaware General Assembly recently amended Delaware’s corporate statutes in several respects of interest to public companies. Boards may delegate stock issuances to non-directors....more

Poor Litigation Conduct by Prevailing Party Not Enough to Obviate Exceptional-Case Doctrine - Gaymar Indus., Inc. v. Cincinnati...

Addressing the degree to which litigation conduct can preclude the recovery of fees under 35 U.S. C. § 285, the U.S. Court of Appeals for the Federal Circuit vacated the denial of a fee award, finding that sloppy litigation...more

Rep. Goodlatte Releases Report on H.R. 9

Last week, Rep. Bob Goodlatte, Chairman of the House Judiciary Committee, released a 200-page Report on H.R. 9, "The innovation Act," introduced by Chairman Goodlatte with several co-sponsors earlier this year. The bill sets...more

Delaware Legislature Prohibits Fee Shifting and Authorizes Exclusive Forum Selection

Delaware corporations should evaluate their certificates of incorporation or bylaws in light of new amendments to the Delaware General Corporation Law. On June 24, Delaware Governor Jack Markell signed Senate Bill 75...more

2015 Changes to Delaware Law Go into Effect

Amendments to the DGCL - Several significant amendments to the Delaware General Corporation Law (DGCL) were signed into law on June 24, 2015, and will go into effect on August 1, 2015. Most significantly, these...more

House Committee Advances Competing Patent Reform Legislation

With yesterday’s House Judiciary Committee vote, there are now competing, and in some respects significantly different, patent reform proposals under serious consideration in the House and the Senate. Among the most important...more

Delaware Corporation Law Amendments Address Fee-Shifting and Exclusive Jurisdiction Provisions

Recently enacted amendments to the Delaware General Corporation Law will prohibit the certificates of incorporation and bylaws of Delaware corporations from including "loser pays" litigation provisions with respect to...more

Attorney Fees Awarded In First Impression

In Ryan v. Editions Limited West Inc., 2015 DJDAR 5455, the U.S. Court of Appeal for the Ninth Circuit decided an important issue of first impression: does the Copyright Act of 1976 preclude enforcement of a contractual...more

In Case You Missed It - Interesting Items for Corporate Counsel - July 2015

The SEC has finally proposed clawback rules, here, required by Section 954 of the Dodd-Frank Act. When adopted, the rules will require stock exchanges to propose and adopt listing standards that implement the requirements;...more

Delaware Corporation Law Now Prohibits “Fee-Shifting,” Allows Limited “Forum Selection”

On June 24, 2015, the Delaware State Legislature enacted various amendments to the General Corporation Law of the State of Delaware (the “DGCL”), which resolved two increasingly controversial issues of corporate governance....more

Delaware General Corporation Law Amendments

On June 24, 2015, Delaware Governor Jack Markell approved several important amendments to the Delaware General Corporation Law (the “DGCL”),[1] with such amendments generally becoming effective on August 1, 2015. These...more

Patent Pending: The Outlook for Patent Legislation in the 114th Congress

The field of patent law is in a state of flux. Just four years after the America Invents Act (“AIA”) went into effect, Congress is taking up the issue once again, this time seeking to pass legislation to curb abusive patent...more

Proxy Advisory Firms

Each January, our firm invites general counsel, CFOs, controllers, and other representatives of our public company clients, as well as other outside advisers to public companies, to a series of presentations focused on “hot...more

Delaware Legislature Rejects Fee-Shifting Bylaws for Stock Corporations

On June 24, Delaware’s Governor signed Senate Bill No. 75 into law and closed the door on the tantalizing prospect of fee shifting (“loser pays”) bylaws for Delaware stock corporations. The full text of the bill can be read...more

Delaware Bans Corporate Fee-Shifting Bylaws and Authorizes Delaware-Only Forum Requirement for Intra-Corporate Litigation

Delaware recently enacted new legislation to prohibit stock corporations from adopting fee-shifting bylaws and charter provisions, among other amendments to the Delaware General Corporation Law. The fee-shifting ban ends a...more

New Delaware Law Invalidates “Fee-shifting” and Validates "Forum-selection" Provisions

Prohibition on Fee-Shifting Provisions - The legislation signed into law last week responds to the Delaware Supreme Court’s decision in ATP Tour, Inc. v. Deutscher Tennis Bund, 91 A.3d 554 (Del. 2014) in which the Court...more

U.S. Supreme Court: Attorney’s Fees Provisions Must be Strictly Construed

“Our basic point of reference when considering the award of attorney’s fees is the bedrock principle known as the American Rule: Each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides...more

When All Else Fails, Look to Fee-Shifting Statutes to Recover Attorney’s Fees

Your company is considering a lawsuit. Or maybe you’ve just been served with a summons and complaint. You’ve evaluated the strengths and weaknesses of the claims, and you’re confident that, when the case ends, you’ll be the...more

Delaware hammers the last nail into the coffin of fee-shifting bylaws

Delaware Governor Jack Markell has signed into law Senate Bill No. 75, which prohibits fee-shifting (or “loser pays”) bylaws for stock corporations. Much to the chagrin of the US Chamber of Commerce, the legislation...more

Delaware Governor Signs Bill Prohibiting Bylaws on Fee-Shifting

Last week, Delaware Governor Jack Markell signed Senate Bill 75, which amends the Delaware General Corporation Law to prohibit Delaware stock corporations from adopting bylaws that force shareholders to pay legal fees if they...more

Professor Bainbridge Takes On S.B. 75 And The Delaware Bar

UCLA Law Professor Stephen Bainbridge recently posted an article calling Delaware’s recently enacted S.B. 75 a “self-inflicted wound”. SB 75, which was signed into law late last month, limits the ability of Delaware stock...more

UPDATE: Significant Amendments to Delaware General Corporation Law Enacted, Become Effective August 1st

Delaware Senate Bill 75 (“SB 75”) was approved by the House of Representatives on June 11, 2015 and signed into law by Delaware Governor Jack Markell on June 25. The new law enacts two very significant changes to the Delaware...more

Delaware General Corporation Law Amended Regarding Fee-Shifting and Forum Selection Clauses

On June 24, 2015, the governor of Delaware signed into law legislation that amends the Delaware General Corporation Law (Title 8 of the Delaware Code) (“DGCL”) to effectively prohibit fee-shifting bylaw provisions in the...more

Blog: Delaware Governor Signs Into Law Prohibition On Fee-Shifting Bylaws And Authorization Of Exclusive Forum Bylaws

On June 24, 2015, the Governor of Delaware signed into law amendments to the Delaware General Corporation Law proposed by the Delaware Bar’s Corporation Law Council and overwhelmingly passed by the Legislature regarding...more

Delaware Amends Its Corporate Law to Prohibit Fee-Shifting, Approve Exclusive Forum Provisions and Facilitate At-The-Market...

On June 24, Delaware’s Governor signed legislation approving amendments to the Delaware General Corporation Law (DGCL). While annual amendments to the DGCL typically involve technical fixes, this year’s legislation addresses...more

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