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.