61 Pages Posted: 17 Sep 2010 Last revised: 12 Jul 2012
Date Written: July 1, 2012
Delaware’s courts and well-developed case law are widely seen as integral elements of Delaware’s success in attracting incorporations. However, as we show using empirical evidence involving reported judicial decisions and filed cases concerning large mergers and acquisitions, leveraged buyouts, and options backdating, Delaware’s popularity as a venue for corporate litigation has dropped sharply. Today, a majority of shareholder suits involving Delaware companies are being brought and decided elsewhere. We examine in this Article the implications of this “out-of-Delaware” trend, emphasizing a difficult balancing act that Delaware faces. If Delaware accommodates litigation too readily, companies, fearful of lawsuits, may incorporate elsewhere. But if plaintiffs’ attorneys find the Delaware courts unwelcoming, they can often file cases in other courts. Delaware could risk losing its status as the de facto national corporate law court, as well as the case flow that lets it provide the rich body of precedent that is part of Delaware’s overall corporate law “brand.” We assess how the Delaware courts and legislature, and Delaware companies, might respond to this threat to Delaware’s pre-eminence as the leading forum for corporate cases, as well as incorporations.
Keywords: Delaware courts, corporate litigation, forum shopping
JEL Classification: K22, K41
Suggested Citation: Suggested Citation
Armour, John and Black, Bernard S. and Cheffins, Brian R., Delaware’s Balancing Act (July 1, 2012). as published in 87 Indiana Law Journal 1345-1405 (2012); University of Cambridge Faculty of Law Research Paper No. 37/2011; ECGI - Law Working Paper 167/2010; Northwestern Law & Econ Research Paper No. 10-04; Oxford Legal Studies Research Paper No. 64/2010. Available at SSRN: https://ssrn.com/abstract=1677400
By Mark West