News & Analysis as of

Post-Dispute Adoption of Arbitration Bylaw Fails

Recent court decisions in other states allowing enforcement of certain “forum selection” clauses in corporate bylaws has sparked much discussion on the scope of such clauses. A California court has just weighed in and made it...more

Delaware Bar Proposes Amendments to Ban Fee-Shifting Provisions and Allow Delaware-Only Forum Selection Provisions in Corporate...

The Council of the Corporation Law Section of the Delaware State Bar Association recently released proposed amendments to the Delaware General Corporation Law (DGCL) that would prohibit fee-shifting provisions in a...more

What’s New in Delaware: Fee-Shifting and Forum Selection Bylaws, Appraisal Rights and Rapid Confidential Arbitration

The Corporation Law Section of the Delaware State Bar Association recently approved amendments to the General Corporation Law of the State of Delaware (the “Proposed DGCL Amendments”), which would prohibit Delaware stock...more

Proposed 2015 Amendments to the Delaware General Corporation Law

The Delaware Corporation Law Council—composed of members of the Delaware bar charged with proposing annual amendments to the Delaware General Corporation Law (DGCL)—has proposed several potentially significant amendments to...more

California court Refuses To Enforce Bylaw Amendment Compelling Arbitration By the Members Of The Corporation

There have been several recent Delaware court decisions and much commentary regarding the enforceability of bylaw provisions that establish rules governing stockholder litigation, including fee-shifting provisions and forum...more

Delaware (again) proposes sledgehammering fee-shifting bylaws

As part of the annual update cycle for Delaware’s General Corporations Law (DGCL), the Delaware Bar has returned to last year’s controversy on fee-shifting provisions in bylaws and certificates of incorporation to propose,...more

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

It's difficult to discern “trends” from reactions to date on proxy access proposals, but here are some data points: Three companies, including two on the NY Comptroller’s 75-company target list have adopted...more

Blog: No Surprises In Delaware Bar’s Corporation Law Council Proposals On Forum Selection And Fee-Shifting Bylaws

The Delaware Bar’s Corporation Law Council is proposing amendments to the Delaware General Corporation Law that would address forum selection provisions, and, more significantly, the debate roiling the Delaware bar regarding...more

"Proposed DGCL Amendments to Address Fee Shifting, Forum Selection and Appraisal Proceedings"

On March 6, 2015, the Corporation Law Council of the Delaware State Bar Association announced proposed amendments to the Delaware General Corporation Law (DGCL) intended to address fee shifting, forum selection and appraisal...more

Blog: Study Shows Benefit Of Forum Selection Bylaws

A new study from Cornerstone Research demonstrates the benefit of adopting forum selection bylaws. The study reveals that, for the first time since 2008, the majority (60%) of M&A-related litigation was filed in only one...more

More Forum Selection Affirmation from Delaware

An interesting Delaware Supreme Court decision just before the holidays may have escaped many people’s attention. In United Technologies Corp. v. Treppel, the Court concluded in the context of stockholder inspection rights...more

Delaware Supreme Court Holds That Court of Chancery Can Restrict Forum Where Books and Records Can Be Used

Previously we have discussed Delaware court decisions upholding forum selection bylaws requiring suits involving a corporation’s internal affairs to be filed in a specified court, such as the Delaware Court of Chancery. Last...more

Forum Selection Bylaws Gain Additional Support in California

In adopting an exclusive forum selection bylaw, companies can avoid the cost and complication of multi-forum litigation after an M&A transaction. In response to the wasteful and burdensome trend of multi-forum...more

The Ropes Recap: Mergers & Acquisitions Law News - October 2014

In this issue: - Delaware Legislative Update - Amendments to DGCL Effective August 1, 2014 - News from the Courts - Additional Guidance on Kahn v. M&F Worldwide Corp. - Exculpation...more

Forum Selection Clauses Were Here Before They Were In Bylaws

Recent rulings by judges in Delaware and other states have given impetus to the adoption of exclusive forum bylaws. To the casual observer, the idea might seem entirely novel. But as Koheleth (the Gatherer) wrote “What has...more

Recent Decisions Confirm That Forum Selection Bylaws Are Best Considered on a Clear Day - But May Be Beneficial Later as Well

“Exclusive forum” bylaws and charter provisions are a powerful tool for managing the risk of parallel corporate governance litigation against a company and its directors in multiple forums, allowing stockholders to bring such...more

Forum Selection Bylaws Gain Ground

As we previously discussed (Should Your Board Adopt an Exclusive Forum Bylaw?, July 2013; The Future of Exclusive Forum Bylaws, November 2013), forum selection bylaws (also sometimes called exclusive forum bylaws) have become...more

Delaware Court Approves Out-Of-State Forum Selection Bylaw Adopted At Time Of Merger

In City of Providence v. First Citizens BancShares Inc. et al., C.A. No. 9795-CB (Del. Ch. Sept. 8, 2014), the Delaware Court of Chancery (Bouchard, C.) held that a minority shareholder's claims against a Delaware...more

Delaware Court of Chancery Reaffirms Enforceability of Forum Selection Bylaws

In City of Providence v. First Citizens BancShares, Inc. (Del. Ch. September 8, 2014), the Delaware Court of Chancery upheld a forum selection bylaw that designated North Carolina as the exclusive forum for certain...more

Delaware Chancery Court Upholds Bylaw Creating Exclusive Forum Outside Of Delaware For Disputes

On September 8, the Court of Chancery of the State of Delaware upheld a bylaw of a Delaware corporation that designated an exclusive forum other than Delaware for resolution of actions against the company and its directors....more

City of Providence v. First Citizens BancShares, Inc., C.A. No. 9795-CB (Del. Ch. Sept. 4, 2014) (Bouchard, C.)

In this consolidated opinion concerning the validity of a forum selection bylaw, the Court of Chancery affirmatively answered, among other things, an issue of first impression: “whether the board of a Delaware corporation may...more

Forum Selection Bylaws Are Best Considered On A Clear Day

“Exclusive forum” bylaws and charter provisions are a powerful tool for managing the risk of parallel corporate governance litigation against a company and its directors in multiple forums, allowing stockholders to bring such...more

Forum Selection Bylaws–More Good News

Fending off merger-related shareholder lawsuits keeps getting easier. Just a week ago, the Delaware Chancery Court upheld the enforceability of the bylaw of a Delaware corporation headquartered in North Carolina that selected...more

Bylaw of Delaware Corporation Providing for Exclusive Forum in North Carolina Upheld

In City of Providence v. First Citizens Bancshares, Inc., C.A. No. 9795 (Del. Ch. Sep. 8, 2014), Delaware Chancellor Bouchard upheld a bylaw adopted by the board of directors of a corporation incorporated in Delaware...more

The Delaware Court Of Chancery Can See Forever On A Clear Day (Even To North Carolina)

I don't usually write about decisions from the Delaware Court of Chancery because it's rare for that Court to even mention North Carolina. But a decision by that Court this week -- in City of Providence v. First Citizens...more

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