原告の敗訴者負担を定める付属定款(fee-shifting bylaws)

Davis Polkのブログの記事が興味深いので,以下の通り引用します。

24 companies have adopted fee-shifting bylaws since May, according to Professor John Coffee in his testimony before the SEC Investor Advisory Committee. … Professor Coffee criticizes fee-shifting bylaws for being generally one-sided, reimbursing successful defendants but not successful plaintiffs, unlike the English Rule.

It appears that the SEC has not weighed in on fee-shifting bylaws so far. As described in this Reuters blog, at least two IPOs with fee-shifting provisions have been completed. There has been criticisms not only about the substance of those provisions, but also the disclosure surrounding their existence.

via Davis Polk, Alison Frankel, J. Robert Brown, Jr., John C. Coffee, Jr.

In re KKR Financial Holdings LLC Shareholder Litigation, 2014 WL 5151285 (Del. Ch. Oc. 14, 2014) (Bouchard, C.)

事業上の繋がりがある会社との買収事案において,買収者が支配株主ではないと認められ,また,過半数の取締役について独立性が認められ,経営判断原則が適用となった事例。

For the reasons explained below, I conclude that it is not reasonably i nferable from the complaint that KKR was a controlling stockholder of KFN or that a majority of the KFN board was not disinterested or independent . I also conclude that, even if the majority of the KFN board was not disinterested or independent, business judgment review still applies because the merger was approved by a majority of disinterested KFN stockholders in a fully informed vote . Thus, all three claims in the complaint will be dismissed for failure to state a claim upon which relief can be granted

via Stephen Bainbridge, Wachtell Lipton Rosen & Katz, Delaware Business Litigation Report