“Exclusive Forum” Bylaws Fast Becoming an Item in M&A Deals

Gibson, Dunn & Crutcher LLP writes:

We reviewed 38 Delaware public M&A deals announced after the Court’s decision in City of Providence. [5] In 17 of the 38 acquisitions, the target announced that it had adopted exclusive forum bylaws at the same time it announced the deal. Targets had adopted exclusive forum bylaws prior to the deal in an additional 10 acquisitions.

Our research indicates that Delaware targets involved in public M&A transactions had exclusive forum bylaws in place in over 70% of recent transactions. If a Delaware target did not have exclusive forum bylaws in place prior to the public announcement of a transaction, it adopted such bylaws at the time of such announcement over 60% of the time.