A recent Delaware Supreme Court case held that fee-shifting bylaws, which shift attorneys fees and costs to unsuccessful plaintiffs in intra-corporate litigation, can be enforceable under the Delaware General Corporation Law. The decision is likely to be controversial. As a result of the publicity generated by this case, many companies are wondering about the ramifications of this opinion and whether they, too, should be adopting a fee-shifting bylaw. The short answer is that it is too soon to tell.
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