Delaware Update: Court of Chancery Upholds Validity of Board-Adopted Forum Selection Bylaws
In a highly anticipated decision, the Delaware Court of Chancery has upheld the validity of board-adopted forum selection bylaws.[1] If upheld on appeal, the court's decision means that the boards of Delaware corporations can reduce the threat of multiforum litigation by amending their bylaws to designate Delaware as the exclusive forum for litigation relating to the corporation's internal affairs. This will enable corporations to litigate certain stockholder disputes more efficiently and with greater predictability.
Board-Adopted Forum Selection Bylaws Are Valid
In recent years, nearly every announcement of a merger or an adverse corporate development is followed by stockholder litigation, and cases are often commenced in multiple jurisdictions simultaneously. Defending the same claim in multiple courts—"multiforum litigation"—imposes significant costs on companies and their stockholders, who ultimately bear the costs of litigation and settlement. In response to that phenomenon, Chevron's and FedEx's boards each adopted a bylaw provision selecting Delaware courts as the exclusive forum for disputes relating to the corporation's internal affairs (except where the corporations consent to another forum). Each board adopted the bylaw pursuant to powers granted to it in the company's certificate of incorporation; no stockholder vote was taken. Chevron later amended its bylaw to address potential concerns about subject-matter jurisdiction for exclusively federal claims and personal jurisdiction over certain defendants.[2]
Chevron and FedEx stockholders challenged the statutory and contractual validity of the forum selection bylaws. The Chancery Court held that such provisions are valid under the relevant Delaware statute because they concern a matter—where a stockholder may sue a company—that bylaws properly may address. The court also rejected the argument that the bylaws are not contractually binding on stockholders because they were unilaterally adopted by the boards without stockholder consent. Bylaws constitute a binding contract between a Delaware corporation and its stockholders, and where a Delaware corporation's certificate of incorporation permits a board to unilaterally amend the bylaws, stockholders are on notice when they purchase stock that they are party to an inherently flexible contract. Thus the board can amend the bylaws without a stockholder vote, as long as those provisions are otherwise consistent with law.
The court also noted that even valid forum selection provisions may not always be enforceable. There may be limited circumstances in which requiring a plaintiff to litigate in the company-selected forum could be unreasonable. For example, a plaintiff may try to avoid enforcement of the provision if only some of the intended corporate defendants would be subject to jurisdiction in the forum. That sort of challenge does not, however, undermine the validity of the bylaws, and would not be expected to affect their enforceability very often. The Chevron bylaw, as amended, would not be susceptible to that potential obstacle to enforceability.
Practice Pointers
Delaware corporations whose bylaws do not currently contain forum selection provisions and whose certificates of incorporation permit the board to adopt and amend bylaws should consider amending their bylaws to include a forum selection provision that identifies the Delaware Chancery Court as the exclusive forum for certain types of actions, including derivative actions, fiduciary-duty lawsuits, claims under the Delaware General Corporation Law, and any other claims related to the corporation's internal affairs. Companies also should consider adopting bylaws modeled after the amended Chevron bylaw, which takes into account the jurisdictional limits of the Chancery Court by designating a federal court for federal-law claims and addresses circumstances where personal jurisdiction may be lacking. Some corporations will decide to await the outcome of any appeal of Chevron/FedEx before adopting exclusive forum provisions, but pending the results of any appeal, Chevron/FedEx is the current law in Delaware and provides Delaware corporations a means for reducing the burden and cost of multiforum litigation.
Lawyer Contacts
For further information, please contact your principal Firm representative or one of the lawyers listed below. General email messages may be sent using our "Contact Us" form, which can be found at www.jonesday.com.
Robert A. Profusek
New York
+1.212.326.3800
raprofusek@jonesday.com
James P. Dougherty
Cleveland / New York
+1.216.586.7302 / +1.212.326.3409
jpdougherty@jonesday.com
Philip Le B. Douglas
New York
+1.212.326.3611
pldouglas@jonesday.com
N. Scott Fletcher
Houston
+1.832.239.3846
sfletcher@jonesday.com
William S. Freeman
Silicon Valley / San Francisco
+1.650.687.4164 / +1.415.626.3939
wfreeman@jonesday.com
Lyle G. Ganske
Cleveland
+1.216.586.7264
lganske@jonesday.com
Thomas R. Jackson
Dallas
+1.214.969.2978
trjackson@jonesday.com
Thomas S. Jones
Pittsburgh
+1.412.394.7924
tsjones@jonesday.com
Eric Landau
Irvine
+1.949.553.7517
elandau@jonesday.com
Andrew M. Levine
New York
+1.212.326.8319
amlevine@jonesday.com
Michael J. McConnell
Atlanta
+1.404.581.8526
mmcconnell@jonesday.com
Robert C. Micheletto
New York
+1.212.326.3690
rmicheletto@jonesday.com
Geoffrey J. Ritts
Cleveland
+1.216.586.7065
gjritts@jonesday.com
Philip S. Stamatakos
Chicago
+1.312.269.4097
pstamatakos@jonesday.com
John C. Tang
San Francisco / Silicon Valley
+1.415.875.5892 / +1.650.687.4129
jctang@jonesday.com
Patricia J. Villareal
Dallas
+1.214.969.2973
pjvillareal@jonesday.com
Jones Day publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our "Contact Us" form, which can be found on our web site at www.jonesday.com. The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.
[1] Boilermakers Local 154 Ret. Fund v. Chevron Corp., C.A. No. 7220-CS and ICLUB Inv. P'ship v. FedEx Corp., C.A. No. 7238-CS (Del. Ch. June 25, 2013).
[2] Chevron's amended bylaw provided that cases must be filed in "a state or federal court located within the state of Delaware, in all cases subject to the court's having personal jurisdiction over the indispensible parties named as defendants." Id., slip op. at 10.
