A recent Delaware Supreme Court case, ATP Tour Inc. v. Deutscher Tennis Bund, No. 534, 2013 (Del. May 8, 2014),1 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 (DGCL). 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.

The ATP opinion is likely to be controversial. As a result of the decision, there may be  legislative or regulatory action taken to limit, or even preclude, the adoption of fee-shifting  bylaws by public companies. Corporate governance rating organizations and proxy advisors may adopt  policies that could potentially lower a company’s corporate governance rating or give rise to  recommendations against the election of directors for companies that adopt a fee-shifting bylaw. At  present, it is unclear whether adopting a fee-shifting bylaw would affect director and officer  insurance premiums, or if it would actually deter litigation. The desirability of adopting such a  bylaw, as well as the preferred terms of such a provision, may be affected by future responses to  the ATP decision. Therefore, companies should determine whether it may be more appropriate to wait  to consider further developments in this area before deciding to adopt a fee-shifting bylaw.

The Delaware Supreme Court Decision

The ATP case arose in the context of a Delaware non-stock membership corporation that  operates a  professional men’s tennis tour. ATP’s members include tennis players and entities that own and  operate tennis tournaments. Two members brought an antitrust and Delaware fiduciary duty suit over  a change in the format and schedule of the tennis tour. The corporation prevailed in the litigation  and then sought to recover fees from the plaintiffs under a fee- shifting bylaw. The US District  Court for the District of Delaware certified four questions to the Delaware Supreme Court  concerning the enforceability of the fee-shifting bylaw under state law.2 The Supreme Court’s  opinion responded to these questions, but did not apply the law to the facts of the ATP litigation.

Specifically, the Supreme Court held that “a bylaw of the type at issue here is facially valid, in  the sense that it is permissible under the DGCL, and that it may be enforceable if adopted by the  appropriate corporate procedures and for a proper corporate purpose.” The Supreme Court also held  that the bylaw would be enforceable at least in a situation where the plaintiffs obtained no relief  at all against the corporation. Although the Supreme Court noted that an improper purpose could  render a legally permissible bylaw unenforceable in equity, it held that the intent to deter  litigation would not invariably constitute an improper purpose and, therefore, would not  necessarily render the provision unenforceable. Finally, the Supreme Court held that a bylaw 

amendment adopted by a board of directors can be enforceable against members who joined before the amendment was adopted if directors have the  power in the certificate of incorporation to amend bylaws. The Supreme Court concluded by stating  that “under Delaware law, a fee- shifting bylaw is not invalid per se, and the fact that it was  adopted after entities became members will not affect its enforceability.”

Practical Considerations

APPLYING THE SUPREME COURT’S DECISION TO A STOCK COMPANY

The ATP decision involved a Delaware non-stock corporation, but the reasoning in the opinion seems  applicable to stock corporations as well. The opinion suggests that Delaware stock corporations,  including the many public companies that are incorporated in Delaware, can adopt fee-shifting bylaw  amendments by action of their boards of directors. However, a board that is considering such a  provision must recognize that its enforceability is likely to depend on the facts and circumstances  involved.

The reason for adopting a fee-shifting bylaw may be a key factor in determining whether that bylaw  is enforceable. A bylaw that is adopted when litigation with a shareholder is looming (or already  in progress) may be harder to defend than a bylaw that is adopted at a time when the board of  directors can discuss the benefit of deterring unwarranted lawsuits in the abstract.

Enforceability may also be affected by the breadth of the provision. The ATP provision has a very  broad trigger for shifting legal fees to a claimant, making each claimant jointly and severally  liable if it “does not obtain a judgment on the merits that substantially achieves, in substance  and amount, the full remedy sought.” A court might be more inclined to enforce a fee- shifting  provision against a shareholder in a public company if the provision were narrower, for example,  shifting fees only in a case where the shareholder lost or, in a derivative action, failed to properly plead demand futility. A provision that reflects a more neutral stance may be viewed with greater acceptance than a  provision where the company seeks fee payment under most conceivable circumstances.

A public company board would also have to consider what kinds of actions would be subject to fee  shifting: A derivative action? An individual or class action brought by a shareholder to challenge  a merger or other transaction? A securities fraud case brought by purchasers of the company’s  stock?

Including securities fraud actions would likely raise the question of whether such clauses are  enforceable under federal law. In the ATP litigation, the federal district court has indicated that  it believes that federal law would preclude the fee-shifting provision from being enforced in a  federal antitrust action. However, no definitive ruling has been made on that issue following the  Supreme Court’s ATP decision.

Companies incorporated outside of Delaware should carefully review the laws of their jurisdictions  to determine if there are any statutory or case law principles that suggest that a fee-shifting  bylaw may be unenforceable.

ADDITIONAL RAMIFICATIONS AND RESPONSES TO FEE-SHIFTING BYLAWS

Apart from the legal considerations outlined above, companies contemplating a fee-shifting bylaw  should also consider a variety of practical issues. For example: How likely is it that such bylaws  will in fact deter meritless litigation? Will they deter knee-jerk derivative actions? How about  the lawsuits that are inevitably filed whenever a transformative transaction is announced? To the  extent that such lawsuits typically end in a settlement, as opposed to a final disposition on the  merits, a fee-shifting bylaw may not have as great a deterrent effect as the board may hope.

Another consideration is whether a forum selection bylaw should also be employed  (whether alone or in combination with a fee- shifting provision) to deter meritless lawsuits. In June 2013, the Delaware Chancery Court upheld  forum selection bylaw provisions adopted by Chevron Corporation and FedEx Corporation, which  required intra-corporate disputes to be litigated exclusively in Delaware.3

The likely reaction of investors, corporate governance rating organizations and proxy advisors is  another practical consideration to keep in mind. Bylaw amendments trigger a  Form 8-K filing, which  would have to describe how the bylaws were amended. Public companies should expect adoption of a  fee- shifting bylaw amendment to garner significant attention. If a decision is made to proceed  with such an amendment, key officers and investor relations personnel must be prepared to respond  to questions regarding the rationale and ramifications of the amendment. In fact, companies that  decide to adopt fee-shifting bylaws may want to explain the reasons for the provision when the  change is announced.

Public companies may face shareholder proposals to block their boards from adopting a fee-shifting  bylaw provision or to repeal an existing fee-shifting bylaw. Shareholders only need to own at least  $2,000 in market value, or  1 percent, of the stock of a public company for one year in order to be  eligible to submit a shareholder proposal for inclusion in that company’s proxy statement. It is  possible that shareholders may be supported in such efforts by activists who may not be company  shareholders. Because shareholders have the power to amend the bylaws, a shareholder proposal could  be presented as a binding resolution that would not require further action by the board of  directors. It is not clear that such a shareholder proposal would be successful, but unless the  company is able to convince the Securities and Exchange Commission that there are grounds to  exclude such proposal, it would bring the issue in front of the annual shareholders meeting.