Shifting the Focus: Let the Courts Decide

Bank and Corporate Governance Law Reporter, Volume 53, Number 5, 2015

5 Pages Posted: 15 Mar 2015

See all articles by Theodore N. Mirvis

Theodore N. Mirvis

Wachtell, Lipton, Rosen & Katz

William Savitt

Wachtell, Lipton, Rosen & Katz

Date Written: January 1, 2015

Abstract

The frenzy over fee-shifting bylaws and charter provisions is no surprise. Anything that addresses the economics of the game so directly is cause for either alarm or implementation, depending on the side of the caption. And in a world where intracorporate litigation is ubiquitous, and very profitable even though far more derivative and class suits lose than win, no change in substantive law would have quite the bite. In our view, however, the calls to resolve the fee-shifting debate by legislative fiat are misguided. The Delaware courts should be allowed to do what only they can: address the propriety of fee-shifting provisions carefully, contextually, and incrementally.

Suggested Citation

Mirvis, Theodore N. and Savitt, William, Shifting the Focus: Let the Courts Decide (January 1, 2015). Bank and Corporate Governance Law Reporter, Volume 53, Number 5, 2015. Available at SSRN: https://ssrn.com/abstract=2577950

Theodore N. Mirvis

Wachtell, Lipton, Rosen & Katz ( email )

51 West 52nd Street
New York, NY 10019
United States

William Savitt (Contact Author)

Wachtell, Lipton, Rosen & Katz ( email )

51 West 52nd Street
New York, NY 10019
United States
212-403-1329 (Phone)
212-403-2329 (Fax)

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