In light of the recent legislative initiative to restrict Delaware stock corporations’ use of fee-shifting bylaws, companies incorporated in Delaware have, as described in a recent Law 360 article, a “smaller more defined toolbox” to reduce the burdens involved with shareholder suits. As it stands, the article notes, the “sharpest tool in the arsenal is boards’ ability to define where cases will be heard.” As the Jones Day law firm noted in a May 2014 memo, the use of exclusive forum provisions has become “mainstream.” An increasingly large number of companies are adopting forum selection by laws and courts outside of the selected forum are showing a consistent willingness to enforce the provisions.
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