Contracting Around Securities Litigation: Some Thoughts on the Scope of Litigation Bylaws
15 Pages Posted: 14 Sep 2015 Last revised: 14 Jan 2016
Date Written: September 14, 2015
Corporate charter and bylaw provisions increasingly set the rules for shareholder litigation. This essay highlights a feature of these controversial provisions: the gradual expansion of their claimed scope. What started as a way to shape state-law litigation about corporate actors has expanded to reach almost all litigation among those actors, including federal securities litigation. This essay advocates limiting these provisions to the core category of state-law corporate governance and outlines how courts could implement this limit.
Note: The essay was written in honor of Professor Alan R. Bromberg's work across fields in business law as part of a symposium issue of the Southern Methodist University Law Review.
Keywords: shareholder litigation, derivative suits, securities litigation, litigation provisions, private ordering, ATP Tour, Boilermakers, fee-shifting, corporate charters, bylaws, Delaware
JEL Classification: K10, K22, K41
Suggested Citation: Suggested Citation