Crafting Fee-Shifting Policy

Abstract

The controversy over emerging fee-shifting corporate bylaw and charter provisions presents multiple policy choices. Delaware’s decision to ban the provisions offers an opportunity for: (i) states to offer a meaningful alternative to Delaware; and (ii) the generation of useful information for evaluating whether particular bylaws or charter provisions enhance shareholder wealth.

Keywords: corporate law, fee-shifting, derivative litigation, Incorporated litigation, corporate governance, corp gov, corporate law