定款に定められるfee shifting条項

付属定款ではなく,定款に定められる,fee shifting provisionについてです。Smart & Final Storesの定款では,次の通り定められています。

SIXTEENTH: Notwithstanding anything in this Certificate of Incorporation to the contrary, to the fullest extent permitted by law, in the event that (i) any current or prior stockholder or anyone on their behalf (a “Claiming Party”) initiates any action, suit or proceeding, whether civil, criminal, administrative or investigative or asserts any claim or counterclaim (each, a “Claim”) or joins, offers substantial assistance to or has a direct financial interest in any Claim against the Corporation (including any Claim purportedly filed on behalf of any other stockholder) and/or any director, officer, employee or affiliate thereof (each, a “Company Party”), and (ii) the Claiming Party (or the third party that received substantial assistance from the Claiming Party or in whose Claim the Claiming Party had a direct financial interest) does not obtain a judgment on the merits that substantially achieves, in substance and amount, the full remedy sought, then each Claiming Party shall be obligated jointly and severally to reimburse the applicable Company Party for all fees, costs and expenses of every kind and description (including, but not limited to, all reasonable attorneys’ fees and other litigation expenses) that the applicable Company Party may incur in connection with such Claim.

J. Robert Brown, Jr.教授は,次の通りコメントしています。

The interference with federal causes of action may violate Section 14 of the 1933 Act. 15 USC 77n (“Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this title or of the rules and regulations of the Commission shall be void.”); see also Section 29(a) of the Exchange Act. In Shearson, the Supreme Court noted that the provision applied to provisions that denied shareholder the ability “to enforce the statutory rights created by” the 1933 Act.
Shearson/American Exp., Inc. v. McMahon, 482 US 220, 222 (1987). The argument exists that a fee shifting provision that effectively prevents shareholders/investors from bringing suits under the federal securities laws is in fact a denial of the ability to enforce statutory rights.

via Race to the Bottom

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