Follow-Up on Exclusive Forum Bylaw Provisions

Supplementing the previous post on this page, Broc Romanek’s blog today reports an interesting survey about corporate plans with regard to the adoption of exclusive forum by law provisions:

Ahead of the news that the case voluntarily dismissed on appeal (see this blog), I ran a survey on what companies are doing pending news of an appeal in the area of exclusive forum by-laws. Here are the results:

1. In light of Chancellor Strine’s opinion in Boilermakers vs. Chevron, should Delaware corporations:
– Adopt a forum selection bylaw soon – 53%
– Defer considering adoption of a forum selection bylaw until the Delaware Supreme Court rules on the issue – 46%
– Never adopt a forum selection bylaw – 1%

2. Does your answer above change if the company is not incorporated in Delaware:
– Yes – 41%
– No – 29%
– I don’t know – 30%

The indication that so many firms (46%) appear to wish to await a determination by the Delaware Supreme Court corroborates the concern I previously expressed about the effect of the dismissal of the FedEx/Chevron appeal.  Separately, though, Ted Mirvis of Wachtell Lipton takes a more optimistic/aggressive view of the matter in a blog entry today.  He writes that “[a]ffirmance by the Supreme Court was widely expected. That would have been a welcome answer to those who still harbor doubt on the issue. The plaintiffs’ decision to dismiss their appeal only underscores the incontestability of the Chancellor’s ruling.”

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