Salzberg v. Sciabacucchi ( 2020 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
MATTHEW B. SALZBERG, JULIE §
M.B. BRADLEY, TRACY BRITT § No. 346, 2019
COOL, KENNETH A. FOX, ROBERT §
P. GOODMAN, GARY R. § Court Below: Court of
HIRSHBERG, BRIAN P. KELLEY, § Chancery of the State of
KATRINA LAKE, STEVEN § Delaware
ANDERSON, J. WILLIAM GURLEY, §
MARKA HANSEN, SHARON § C.A. No. 2017-0931
MCCOLLAM, ANTHONY WOOD,
§
RAVI AHUJA, SHAWN CAROLAN,
§
JEFFREY HASTINGS, ALAN
§
HENDRICKS, NEIL HUNT, DANIEL
LEFF, and RAY ROTHROCK, §
§
Defendants Below, §
Appellants, §
§
and §
§
BLUE APRON HOLDINGS, INC., §
STITCH FIX, INC., and ROKU, INC., §
§
Nominal Defendants Below, §
Appellants, §
§
v. §
§
MATTHEW SCIABACUCCHI, on §
behalf of himself and all others §
similarly situated, §
§
Plaintiff Below, Appellee.
§
§
§
Submitted: January 8, 2020
Decided: March 18, 2020
Before SEITZ, Chief Justice; VALIHURA, VAUGHN, and TRAYNOR, Justices; and
KARSNITZ, Judge, constituting the Court en Banc.
Upon appeal from the Court of Chancery. REVERSED.
William B. Chandler, III, Esquire (argued), Bradley D. Sorrels, Esquire, Lindsay Kwoka
Faccenda, Esquire, Andrew D. Berni, Esquire, WILSON SONSINI GOODRICH &
ROSATI, P.C., Wilmington, Delaware; Boris Feldman, Esquire, David J. Berger,
Esquire, WILSON SONSINI GOODRICH & ROSATI, P.C., Palo Alto, California;
Attorneys for Defendants-Appellants Katrina Lake, Steven Anderson, J. William Gurley,
Marka Hansen, Sharon McCollam, Anthony Wood, Ravi Ahuja, Shawn Carolan, Jeffrey
Hastings, Alan Hendricks, Neil Hunt, Daniel Leff, Ray Rothrock, Stitch Fix, Inc., and
Roku, Inc.
Catherine G. Dearlove, Esquire, Anthony M. Calvano, Esquire, Tyre Tindall, Esquire,
RICHARDS LAYTON & FINGER, P.A., Wilmington, Delaware; Michael
G. Bongiorno, Esquire, WILMER CUTLER PICKERING HALE & DORR, LLP, New
York, New York; Timothy J. Perla, Esquire, WILMER CUTLER PICKERING HALE
& DORR, LLP, Boston, Massachusetts; Attorneys for Defendants-Appellants Matthew
B. Salzberg, Julie M.B. Bradley, Tracy Britt Cool, Kenneth A. Fox, Robert P. Goodman,
Gary R. Hirshberg, Brian P. Kelley, and Blue Apron Holdings, Inc.
Kurt M. Heyman, Esquire, Melissa N. Donimirski, Esquire, Aaron M. Nelson, Esquire,
HEYMAN ENERIO GATTUSO & HIRZEL LLP, Wilmington, Delaware; Jason M.
Leviton, Esquire, Joel A. Fleming, Esquire (argued), Lauren Godles Milgroom, Esquire,
Amanda R. Crawford, Esquire, BLOCK & LEVITON LLP, Boston, Massachusetts;
Attorneys for Plaintiff-Appellee Matthew Sciabacucchi.
VALIHURA, Justice:
 Sitting by designation under Del. Const. Art. IV § 12.
2
We are asked to determine the validity of a provision in several Delaware
corporations’ charters requiring actions arising under the federal Securities Act of 1933
(the “Securities Act” or “1933 Act”) to be filed in a federal court. Blue Apron Holdings,
Inc., Roku, Inc., and Stitch Fix, Inc. are all Delaware corporations that launched initial
public offerings in 2017. Before filing their registration statements with the United States
Securities and Exchange Commission (the “SEC”), each company adopted a federal-forum
provision. An example of such a federal-forum provision (or “FFP”) provides:
Unless the Company consents in writing to the selection of an alternative
forum, the federal district courts of the United States of America shall be the
exclusive forum for the resolution of any complaint asserting a cause of
action arising under the Securities Act of 1933. Any person or entity
purchasing or otherwise acquiring any interest in any security of [the
Company] shall be deemed to have notice of and consented to [this
provision].1
Appellee Matthew Sciabacucchi (“Appellee”) bought shares of each company in its
initial public offering or a short time later. He then sought a declaratory judgment in the
Court of Chancery that the FFPs are invalid under Delaware law. The Court of Chancery
held that the FFPs are invalid because the “constitutive documents of a Delaware
corporation cannot bind a plaintiff to a particular forum when the claim does not involve
rights or relationships that were established by or under Delaware’s corporate law.”2
Because such a provision can survive a facial challenge under our law, we REVERSE.
1
Sciabacucchi v. Salzberg, 2018 WL 6719718, at *6 (Del. Ch. Dec. 19, 2018) [hereinafter
Opinion]. Defendants Stitch Fix, Inc. and Roku, Inc. adopted substantively identical provisions,
while Blue Apron, Inc. qualified its FFP to have effect “to the fullest extent permitted by law.”
Id.; see App. to Opening Br. at A69, A84, A100.
2
Opinion, 2018 WL 6719718, at *3.
3
I. Overview
The Securities Act of 1933 requires persons offering securities for sale to the public
to file a registration statement3 that makes “full and fair disclosure of relevant
information.”4 The 1933 Act creates private rights of action so that purchasers of securities
can enforce the registration and disclosure requirements of the 1933 Act.5 Unlike some
other securities laws for which there are no private rights of action, the statute provides that
private plaintiffs may bring their claims under the 1933 Act in either federal or state courts.6
The statute also bars the removal of such actions from state court to federal court.7 Thus,
if a plaintiff chooses to bring an action under the 1933 Act in state court, a defendant cannot
change the forum.8
3
15 U.S.C. § 77e.
4
Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, 138 S. Ct. 1061, 1066 (2018) (internal quotation
marks omitted).
5
Id; see also Omnicare, Inc. v. Laborers Dist. Counsel Constr. Indus. Pension Fund, 575 U.S.
175, 179 (2015) (“The Securities Act of 1933 . . . protects investors by ensuring that companies
issuing securities (known as ‘issuers’) make a ‘full and fair disclosure of information’ relevant to
a public offering.”).
6
Cyan, 138 S. Ct. at 179; see 15 U.S.C. § 77v(a) (“The district courts of the United States and the
United States courts of any Territory shall have jurisdiction of offenses and violations under this
subchapter . . . and, concurrent with State and Territorial courts, except as provided in section 77p
of this title with respect to covered class actions, of all suits in equity and actions at law brought
to enforce any liability or duty created by this subchapter.”).
7
See 15 U.S.C. § 77v(a) (“Except as provided in section 77p(c) of this title, no case arising under
this subchapter and brought in any State court of competent jurisdiction shall be removed to any
court of the United States.”); see also Cyan, 138 S. Ct. at 1078 (“[The Securities Litigation
Uniform Standards Act of 1998 (‘SLUSA’)] did nothing to strip state courts of their longstanding
jurisdiction to adjudicate class actions alleging only 1933 Act violations. Neither did SLUSA
authorize removing such suits from state to federal court.”).
8
Cyan, 138 S. Ct. at 1066.
4
Section 12(a)(1)9 of the 1933 Act “imposes strict liability for violating” the
securities registration requirements, which “are the heart of the Act.” 10 Section 1111
“allows purchasers of a registered security to sue certain enumerated parties in a registered
offering when false or misleading information is included in a registration statement.”12 A
plaintiff who purchased a security issued under a registration statement “need only show a
material misstatement or omission to establish his prima facie case.”13 In addition to the
issuer, other defendants, including the corporation’s directors,14 are also potentially liable,
although they may avoid liability by proving a due diligence defense.15
Section 12(a)(2)16 “provides similar redress where the securities at issue were sold
using prospectuses or oral communications that contain material misstatements or
9
15 U.S.C. § 77l(a)(1).
10
Pinter v. Dahl, 486 U.S. 622, 638 (1988).
11
15 U.S.C. § 77k(a).
12
Herman & MacLean v. Huddleston, 459 U.S. 375, 381 (1983).
13
Id. at 382 (citations omitted); see also Omnicare, 575 U.S. at 179 (“Section 11 thus creates two
ways to hold issuers liable for the contents of a registration statement—one focusing on what the
statement says and the other on what it leaves out. Either way, the buyer need not prove (as he
must to establish certain other securities offenses) that the defendant acted with any intent to
deceive or defraud.” (citation omitted)); In re Morgan Stanley Info. Fund Sec. Litig., 592 F.3d 347,
358–59 (2d Cir. 2010) (stating that, to state a claim under Section 11, a plaintiff must allege that
“(1) she purchased a registered security, either directly from the issuer or in the aftermarket
following the offering; (2) the defendant participated in the offering in a manner sufficient to give
rise to liability under section 11; and (3) the registration statement ‘contained an untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading’” (quoting 15 U.S.C. § 77k(a))).
14
See 15 U.S.C. § 77k(a)(1)–(5) (listing potential defendants).
15
Huddleston, 459 U.S. at 382.
16
15 U.S.C. § 77l(a)(2).
5
omissions.”17 Liability under Section 12(a)(2) extends to “statutory sellers,” including a
person who “passed title, or other interest in the security, to the buyer for value” or
“successfully solicited the purchase of a security, motivated at least in part by a desire to
serve his own financial interests or those of the securities’ owner.” 18 Section 15 imposes
liability on an individual or entity that “controls any person liable” under Sections 11 or
12.19
Concerns over “perceived abuses of the class-action vehicle in litigation involving
nationally traded securities” prompted Congress to adopt the Private Securities Litigation
Reform Act in 1995 (“PSLRA”).20 The provisions of the PSLRA, aimed at the “Reduction
of Abusive Litigation,” “limit recoverable damages and attorney’s fees, provide a ‘safe
harbor’ for forward-looking statements, impose new restrictions on the selection of (and
compensation awarded to) lead plaintiffs, mandate imposition of sanctions for frivolous
litigation, and authorize a stay of discovery pending resolution of any motion to dismiss.”21
But the PSLRA “had an unintended consequence: It prompted at least some members of
the plaintiffs’ bar to avoid the federal forum altogether. Rather than face the obstacles set
in their path by the [PSLRA], plaintiffs and their representatives began bringing class
actions under state law, often in state court.”22
17
Morgan Stanley, 592 F.3d at 359; see 15 U.S.C. §§ 77z–1, 78u–4.
18
Morgan Stanley, 592 F.3d at 359 (internal quotations and alterations omitted).
19
15 U.S.C. § 77o(a).
20
Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 81 (2006).
21
Id. (summarizing 15 U.S.C. § 78u–4).
22
Id. at 82.
6
Some corporations preferred to litigate 1933 Act claims in federal court and began
adopting forum-selection provisions that designated the federal courts as the exclusive
forum for such claims.23 Each of the companies in this appeal is a Delaware corporation
that launched a 2017 initial public offering. Before filing their registration statements with
the SEC, each company adopted a federal-forum provision in its certificate of
incorporation, designating the federal courts as the exclusive forum for the resolution of
claims under the 1933 Act.
Roku’s and Stitch Fix’s federal-forum provisions provided:
Unless the Company consents in writing to the selection of an alternative
forum, the federal district courts of the United States of America shall be the
exclusive forum for the resolution of any complaint asserting a cause of
action arising under the Securities Act of 1933. Any person or entity
purchasing or otherwise acquiring any interest in any security of [the
Company] shall be deemed to have notice of and consented to [this
provision].24
Blue Apron’s provision differed slightly:
Unless the Corporation consents in writing to the selection of an alternative
forum, the federal district courts of the United States of America shall, to the
fullest extent permitted by law, be the sole and exclusive forum for the
resolution of any complaint asserting a cause of action arising under the
Securities Act of 1933. Any person or entity purchasing or otherwise
acquiring or holding any interest in shares of capital stock of the Corporation
shall be deemed to have notice of and consented to [this provision].25
23
Opinion, 2018 WL 6719718, at *6.
24
App. to Opening Br. at A84, A100.
25
Id. at A69 (emphasis added). The language difference between the two provisions is immaterial
to our decision.
7
Appellee bought shares of common stock of each company, either in the initial
public offering or a short time later. On December 29, 2017, he filed a putative class-action
complaint in the Court of Chancery against the individuals who had served as the
companies’ directors since they went public, and named the companies as nominal
defendants. The complaint sought a declaratory judgment that the federal-forum
provisions are invalid under Delaware law.
The Court of Chancery granted the motion for summary judgment. In reaching that
result, the court examined its 2013 decision in Boilermakers Local 154 Retirement Fund v.
Chevron Corp.,26 this Court’s 2014 decision in ATP Tour, Inc. v. Deutscher Tennis Bund,27
federal case law, and what the Court of Chancery described as “first principles” of
Delaware corporate law. The court decided that the “constitutive documents of a Delaware
corporation cannot bind a plaintiff to a particular forum when the claim does not involve
rights or relationships that were established by or under Delaware’s corporate law.”28
Because “the Federal Forum Provisions attempt to accomplish that feat,” the court held
that the federal-forum provisions are “ineffective and invalid.”29
26
73 A.3d 934 (Del. Ch. 2013).
27
91 A.3d 554 (Del. 2014).
28
Opinion, 2018 WL 6719718, at *3.
29
Id.
8
II. Standard of Review
This Court reviews the Court of Chancery’s decision to grant summary judgment
de novo.30 A court may grant summary judgment only if, based on the undisputed material
facts, the moving party is entitled to judgment as a matter of law. 31 There are no material
facts in dispute in this appeal, and the issues on which we decide this appeal concern the
interpretation of the statutes governing the permissible contents of a Delaware
corporation’s certificate of incorporation. Statutory interpretation is a question of law,
which we review de novo.32 The plaintiff must show that the federal-forum provisions do
not address a proper subject matter of charter provisions under 8 Del. C. § 102(b)(1).
III. Analysis
A. FFPs are Valid as They Fall Within the Plain Text of Section 102(b)(1)
1. This is a Facial Challenge
In asserting its facial challenge, the plaintiff must show that the charter provisions
“cannot operate lawfully or equitably under any circumstances.”33 Plaintiffs must
demonstrate that the charter provisions “do not address proper subject matters” as defined
by statute, “and can never operate consistently with law.”34
30
In re Krafft-Murphy Co., Inc., 82 A.3d 696, 702 (Del. 2013).
31
Id.
32
Corvel Corp. v. Homeland Ins. Co. of N.Y., 112 A.3d 863, 868 (Del. 2015).
33
Cedarview Opportunities Master Fund, L.P. v. Spanish Broad. Sys., Inc., 2018 WL 4057012, at
*20 (Del. Ch. Aug. 27, 2018) (quoting Boilermakers, 73 A.3d at 948) (internal quotation marks
omitted).
34
Boilermakers, 73 A.3d at 949 (citing Stroud v. Grace, 606 A.2d 75, 79 (Del. 1992) and Frantz
Mfg. Co. v. EAC Indus., 501 A.2d 401, 407 (Del. 1985)).
9
2. The FFPs Fall Within the Broad, Enabling Text of Section 102(b)(1)
The analysis must begin with the text of Section 102, the provision of the Delaware
General Corporation Law (“DGCL”) governing the matters contained in a corporation’s
certificate of incorporation.35 The “most important consideration for a court in interpreting
a statute is the words the General Assembly used in writing it.”36 The court must “give the
statutory words their commonly understood meanings.”37
Section 102(b)(1) provides:
(b) In addition to the matters required to be set forth in the certificate of
incorporation by subsection (a) of this section, the certificate of incorporation
may also contain any or all of the following matters: (1) Any provision for
the management of the business and for the conduct of the affairs of the
corporation, and any provision creating, defining, limiting and regulating the
powers of the corporation, the directors, and the stockholders, or any class of
the stockholders, or the governing body, members, or any class or group of
members of a nonstock corporation; if such provisions are not contrary to the
laws of this State. Any provision which is required or permitted by any
section of this chapter to be stated in the bylaws may instead be stated in the
certificate of incorporation . . . .38
Thus, Section 102(b)(1) authorizes two broad types of provisions:
any provision for the management of the business and for the conduct of the
affairs of the corporation,
35
8 Del. C. § 102. See State v. Barnes, 116 A.3d 883, 888 (Del. 2015) (“The starting point for the
interpretation of a statute begins with the statute’s language.”); Friends of H. Fletcher Brown
Mansion v. City of Wilmington, 34 A.3d 1055, 1059 (Del. 2011) (“[T]he meaning of a statute must,
in the first instance, be sought in the language in which the act is framed, and if that is plain . . .
the sole function of the courts is to enforce it according to its terms.” (quoting Caminetti v. United
States, 242 U.S. 470, 485 (1917)) (internal quotation marks omitted)).
36
Boilermakers, 73 A.3d at 950 (citing New Cingular Wireless PCS v. Sussex Cty. Bd. Of
Adjustment, 65 A.3d 607, 611 (Del. 2013)).
37
Kofron v. Amoco Chems. Corp., 441 A.2d 226, 230 (Del. 1982).
38
8 Del. C. § 102(b)(1).
10
and
any provision creating, defining, limiting and regulating the powers of the
corporation, the directors, and the stockholders, or any class of the
stockholders, . . . if such provisions are not contrary to the laws of this State.
An FFP could easily fall within either of these broad categories, and thus, is facially
valid. FFPs involve a type of securities claim related to the management of litigation
arising out of the Board’s disclosures to current and prospective stockholders in connection
with an IPO or secondary offering. The drafting, reviewing, and filing of registration
statements by a corporation and its directors is an important aspect of a corporation’s
management of its business and affairs and of its relationship with its stockholders. This
Court has viewed the overlap of federal and state law in the disclosure area as “historic,”
“compatible,” and “complimentary.”39 Accordingly, a bylaw that seeks to regulate the
forum in which such “intra-corporate” litigation can occur is a provision that addresses the
“management of the business” and the “conduct of the affairs of the corporation,” and is,
thus, facially valid under Section 102(b)(1).
i. FFPs and Post-Cyan Efficiencies
To elaborate, FFPs can provide a corporation with certain efficiencies in managing
the procedural aspects of securities litigation following the United States Supreme Court’s
decision in Cyan, Inc. v. Beaver County Employees Retirement Fund.40 There, the United
39
Malone v. Brincat, 722 A.2d 5, 13 (Del. 1998); see id. at 12 (“When corporate directors impart
information they must comport with the obligations imposed by both the Delaware law and the
federal statutes and regulations of the [SEC].”); id. at 13 (observing that, “[t]he historic roles
played by state and federal law in regulating corporate disclosures have been not only compatible
but complimentary” (citing Santa Fe Indus., Inc. v. Green, 430 U.S. 462, 474–80 (1977))).
40
138 S. Ct. 1061.
11
States Supreme Court unanimously held that federal and state courts have concurrent
jurisdiction over class actions based on claims brought under the 1933 Act, and that such
claims are not removable to federal court. Following Cyan, in 2018, the filing of 1933 Act
cases in state courts escalated. The 2018 Year in Review Report by Cornerstone Research
found that, “[t]here were 55 percent more state-only filings than federal-only filings in
2018.”41 Claims brought under Section 11 of the 1933 Act “decreased in federal courts as
a portion of filing activity moved to state courts.”42 The 2018 report observed that, “[t]he
uptick in state actions following the Cyan decision indicates a change in approach by
plaintiffs.”43
The recently released Cornerstone 2019 Year in Review Report states that, “[t]he
number of state 1933 Act filings in 2019 increased by 40 percent from 2018,” and that
“[a]bout 45 percent of all state 1933 Act filings in 2019 had a parallel action in federal
court.”44 In 2019, the combined number of federal Section 11 filings and state 1933 Act
41
Stanford Law Sch. Secs. Class Action Clearinghouse & Cornerstone Research, Securities Class
Action Filings 2018 Year in Review 22 (2019). The report notes that in 2018, the combined number
of federal Section 11 filings and state 1933 Act filings was 41. This consisted of 13 parallel filings,
17 state-only filings, and 11 federal-only filings. Further, “these filings in federal and state courts
increased by 52 percent compared to 2017 due to the rise in state filing activity.” Id. at 21. In
2018, 16 class actions alleging 1933 Act violations were filed in California state courts, 13 were
filed in New York state courts, and four were filed in other state courts. The 2018 Report concludes
that, “[f]ilings in New York state courts appear to have markedly increased in 2018 as a result of
the Cyan decision,” and that, “[a]ll 13 1933 Act filings in New York were filed after the U.S.
Supreme Court’s ruling in March.” Id. at 19.
42
Id. at 10.
43
Id. at 21.
44
Stanford Law Sch. Secs. Class Action Clearinghouse & Cornerstone Research, Securities Class
Action Filings 2019 Year in Review 4 (2020). The report notes that 1933 Act filings in California
state courts decreased from 2018 to 2019, but filings in New York and other states rose
12
filings was 65, approximately a 59 percent overall increase from 2018.45 Of the 65 filings,
22 were parallel filings, 27 were state-only filings (a 69 percent increase from 2018), and
16 were federal-only filings.46 State-only and parallel filings made up over 75 percent of
all federal Section 11 and state 1933 Act filings in 2019.47 Since Cyan, 43 parallel class
actions have been filed in multiple jurisdictions.48 The 2019 report observes that, “[t]he 65
filings in 2019 was historically unprecedented,” and that, “[p]rior to 2015, there were only
a handful of state court filings, and the highest number of federal Section 11 filings
previously was 57 in 1998.”49
When parallel state and federal actions are filed, no procedural mechanism is
available to consolidate or coordinate multiple suits in state and federal court. The costs
and inefficiencies of multiple cases being litigated simultaneously in both state and federal
courts are obvious.50 The possibility of inconsistent judgments and rulings on other
matters, such as stays of discovery, also exists. By directing 1933 Act claims to federal
courts when coordination and consolidation are possible, FFPs classically fit the definition
of a provision “for the management of the business and for the conduct of the affairs of the
substantially, with New York state courts becoming the preferred state venue for 1933 Act
plaintiffs. Id.
45
Id. at 22.
46
Id. at 25.
47
Id.
48
Id. at 24.
49
Id. at 25.
50
The 2019 report notes “as an example of post-Cyan jurisdictional complexities,” that in 2019,
SmileDirectClub was the subject of securities class action filings in New York federal court,
Tennessee federal and state courts, and Michigan federal and state courts. Id. at 24.
13
corporation.” An FFP would also be a provision “defining, limiting and regulating the
powers of the corporation, the directors and the stockholders,” since FFPs prescribe where
current and former stockholders can bring Section 11 claims against the corporation its and
directors and officers.51
ii. FFPs are Not Contrary to Policies or Laws of Delaware
a. FFPs Do Not Violate Section 102
Section 102(b)’s broad authorization is constrained by the phrase, “if such
provisions are not contrary to the laws of this State.”52 FFPs do not violate the policies or
laws of this State.
First, Section 102(b)(1)’s scope is broadly enabling. For example, in Sterling v.
Mayflower Hotel Corp.,53 this Court held that Section 102(b)(1) bars only charter
provisions that would “achieve a result forbidden by settled rules of public policy.”54
Accordingly, “the stockholders of a Delaware corporation may by contract embody in the
[certificate of incorporation] a provision departing from the rules of the common law,
provided that it does not transgress a statutory enactment or a public policy settled by the
common law or implicit in the General Corporation Law itself.”55
51
In Boilermakers, the Court of Chancery held that as “a matter of easy linguistics,” the forum
bylaws were valid under Section 109(b) “because they regulate where stockholders may file suit.”
73 A.3d at 950–52. They also “plainly relate to the ‘business of the corporation[s],’ the ‘conduct
of [their] affairs,’ and regulate the ‘rights and powers of [their] stockholders.’” Id. at 939.
52
8 Del. C. § 102(b)(1).
53
93 A.2d 107 (Del. 1952).
54
Id. at 118.
55
Id. There are a few statutory provisions that cannot be limited in a certification of incorporation.
See Edward P. Welch & Robert S. Saunders, Freedom and Its Limits in the Delaware General
14
Further, recognizing that corporate charters are contracts among a corporation’s
stockholders, stockholder-approved charter amendments are given great respect under our
law. In Williams v. Geier,56 in commenting on the “broad policies underlying the Delaware
General Corporation Law,” this Court observed that, “all amendments to certificates of
incorporation and mergers require stockholder action,” and that, “Delaware’s legislative
policy is to look to the will of the stockholders in these areas.”57 Williams supports the
view that FFPs in stockholder-approved charter amendments should be respected as a
matter of policy.58 At a minimum, they should not be deemed violative of Delaware’s
public policy.
Finally, the DGCL allows immense freedom for businesses to adopt the most
appropriate terms for the organization, finance, and governance of their enterprise.59 “At
its core, the [DGCL] is a broad enabling act which leaves latitude for substantial private
ordering, provided the statutory parameters and judicially imposed principles of fiduciary
duty are honored.”60 In fact, “Delaware’s corporate statute is widely regarded as the most
flexible in the nation because it leaves the parties to the corporate contract (managers and
Corporation Law, 33 Del. J. Corp. L. 845, 856–60 (2008) (discussing cases concerning the rights
of stockholders to periodically elect directors, to inspect books and records, and directors’ duty of
loyalty).
56
671 A.2d 1368 (Del. 1996).
57
Id. at 1381.
58
See Nat’l Indus. Grp. (Hldg.) v. Carlyle Inv. Mgmt. L.L.C., 67 A.3d 373, 387 (Del. 2013) (“The
enforcement of an international forum selection clause is not an issue of comity. It is a matter of
contract enforcement and giving effect to substantive rights that the parties have agreed upon.”).
59
Welch & Saunders, supra note 55, at 847.
60
Williams, 671 A.2d at 1381.
15
stockholders) with great leeway to structure their relations, subject to relatively loose
statutory constraints and to the policing of director misconduct through equitable
review.”61
In sum, FFPs are facially valid under both the enabling text of Section 102(b)(1)
and as a matter of Delaware public policy.
b. The 2015 Amendments Did Not Alter Section 102(b)(1)’s
Broad Scope
Section 115, added in the 2015 amendments to the DGCL, supports the view that
FFPs are valid under Delaware law, and in particular, Section 102(b)(1). Section 115
provides:
The certificate of incorporation or the bylaws may require, consistent with
applicable jurisdictional requirements, that any or all internal corporate
claims shall be brought solely and exclusively in any or all of the courts in
this State, and no provision of the certificate of incorporation or the bylaws
may prohibit bringing such claims in the courts of this State. “Internal
corporate claims” means claims, including claims in the right of the
corporation, (i) that are based upon a violation of a duty by a current or
former director or officer or stockholder in such capacity, or (ii) as to which
this title confers jurisdiction upon the Court of Chancery.62
61
Jones Apparel Grp., Inc. v. Maxwell Shoe Co., Inc., 883 A.2d 837, 845 (Del. Ch. 2004).
62
8 Del. C. § 115. A similar provision was adopted in 2000 in the alternative entity context in
response to this Court’s decision in Elf Atochem N. Am., Inc. v. Jaffari, 727 A.2d 286 (Del. 1999).
In that case, this Court upheld a forum-selection clause in the company’s operating agreement
which designated a foreign jurisdiction as the exclusive jurisdiction for internal disputes. In
response, our General Assembly adopted Section 18-109(d) of the Delaware LLC Act prohibiting
a Delaware LLC from designating a foreign jurisdiction as its exclusive jurisdiction for internal
disputes. The Delaware Limited Partnership Act was similarly amended.
16
The 2015 amendments were intended, in part, to codify Boilermakers,63 and to
preclude a charter or bylaw provision from excluding Delaware as a forum for internal
corporate claims. Notably, Section 102(b)(1) was not amended. The synopsis to the bill
introducing the legislation states that, “Section 115 is also not intended to authorize a
provision that purports to foreclose suit in a federal court based on federal jurisdiction, nor
is Section 115 intended to limit or expand the jurisdiction of the Court of Chancery or the
Superior Court.”64 FFPs do not foreclose suits in federal court. Rather, they direct 1933
Act claims (federal claims) to federal court.
The 2015 amendment adding Section 102(f) further supports the view that Section
102(b)(1) remains expansive enough to include FFPs. Section 102(f) prohibits fee-shifting
as against stockholders (of stock corporations) in connection with an “internal corporate
claim,” as defined in Section 115. Specifically, Section 102(f) provides:
(f) The certificate of incorporation may not contain any provision that would
impose liability on a stockholder for the attorneys’ fees or expenses of the
corporation or any other party in connection with an internal corporate claim,
as defined in § 115 of this title.65
The language in Section 102(f) implies that Section 102(b)(1) can address claims other
than “internal corporate claims.” Otherwise, the reference to “internal corporate claims”
63
73 A.3d 934.
64
Del. S.B. 75 syn., 148th Gen. Assem. (2015).
65
8 Del. C. § 102(f). The 2015 amendments do not disturb the ruling in ATP Tour Inc. v. Deutscher
Tennis Bund, 91 A.3d 554 (Del. 2014), in relation to nonstock corporations. Del. S.B. 75 syn. The
synopsis also states that, “[n]ew subsection (f) is not intended, however, to prevent the application
of such provisions pursuant to a stockholders agreement or other writing signed by the stockholder
against whom the provision is to be enforced.” Id.
17
in new Section 102(f) would not have been necessary. We must give meaning to every
word in the statute.66 Each part or section of a statute should be construed in connection
with every other part or section to produce a harmonious whole.67 “Statutory construction
. . . is a holistic endeavor.”68 It is presumed that “the General Assembly purposefully chose
particular language and [we] therefore construe statutes to avoid surplusage if reasonably
possible.”69 This reading is also consistent with our holding in ATP.
The Appellee contends the 2015 amendments adding Section 115 implicitly
amended Section 102(b)(1). More specifically, the Appellee contends that Section 115
“reflects either prohibition [of FFPs] or implicit recognition that [FFPs] were never
66
Doroshow, Pasquale, Krawitz & Bhaya v. Nanticoke Mem. Hosp., Inc., 36 A.3d 336, 344 (Del.
2012) (affirming the “canon of statutory construction that every word chosen by the legislature
(and often bargained for by interested constituent groups) must have meaning”).
67
Grimes v. Alteon Inc., 804 A.2d 256, 265 n.35 (Del. 2002) (en banc) (citing 2A Norman J.
Singer, Sutherland on Statutory Construction § 46:05 (2000)).
68
Terex Corp. v. S. Track & Pump, Inc., 117 A.3d 537, 543 (Del. 2015); see also Spielberg v.
State, 558 A.2d 291, 293 (Del. 1989) (stating that, statutes “must be viewed as a whole”).
69
Sussex Cty. Dep’t of Elections v. Sussex Cty. Republican Comm., 58 A.3d 418, 422 (Del. 2013)
(citing CML V, LLC v. Bax, 28 A.3d 1037, 1041 (Del. 2011)); see Clark v. State, 65 A.3d 571, 578
(Del. 2013); Zhurbin v. State, 104 A.3d 108, 110 (Del. 2014); Chase Alexa, LLC v. Kent Cty. Levy
Ct., 991 A.2d 1148, 1152 (Del. 2010) (“[W]ords in a statute should not be construed as surplusage
if there is a reasonable construction which will give them meaning, and courts must ascribe a
purpose to the use of statutory language, if reasonably possible.” (quoting Oceanport Indus., Inc.
v. Wilmington Stevedores, Inc., 636 A.2d 892, 900 (Del. 1994)) (internal quotation marks
omitted)). “The legislative body is presumed to have inserted every provision for some useful
purpose and construction, and when different terms are used in various parts of a statute it is
reasonable to assume that a distinction between the terms was intended.” Giuricich v. Emtrol
Corp., 449 A.2d 232, 238 (Del. 1982) (citation omitted). See Leatherbury v. Greenspun, 939 A.2d
1284, 1291 (Del. 2007) (stating that, “[i]t is well established that a court may not engraft upon a
statute language which has clearly been excluded therefrom,” and that, “when provisions are
expressly included in one statute but omitted from another, we must conclude that the General
Assembly intended to make those omissions”).
18
authorized by Section 102(b)(1) in the first place.”70 The Appellants disagree, arguing that
because Section 115 does not explicitly state that a charter may not contain a forum-
selection provision that addresses claims other than “internal corporate claims,” Section
115 does not limit the scope of provisions that are permissible under Section 102(b)(1).71
The Appellee’s argument runs afoul of a number of well-established principles of
statutory construction. First, “[c]ourts do not resort to other statutes if the statute being
construed is clear and unambiguous.”72 Section 102(b)(1) is clear and unambiguous. By
its terms, it does not incorporate Section 115.
Second, principles of statutory construction instruct that statutes should not be
superseded or altered by implication unless there is an irreconcilable conflict. 73 The
Appellee attempts to create a conflict between Section 102(b)(1) and Section 115 by
reading Section 115 as modifying Section 102(b)(1). But the two statutes do not conflict—
at least not irreconcilably. Indeed, an interpretation that harmonizes the two—as opposed
to one that puts them in conflict with each other—is readily available here. Section 115
70
Answering Br. at 18.
71
Opening Br. at 24; Reply Br. at 8–11.
72
2A Norman J. Singer, Sutherland Statutory Construction § 51:1 (7th ed.).
73
“It is assumed that when the General Assembly enacts a later statute in an area covered by a
prior statute, it has in mind the prior statute and therefore statutes on the same subject must be
construed together so that effect is given to every provision unless there is an irreconcilable conflict
between the statutes, in which case the later supersedes the earlier.” State v. Fletcher, 974 A.2d
188, 193 (Del. 2009) (quoting State, Dept. of Labor v. Minner, 448 A.2d 227, 229 (Del. 1982));
State v. Cook, 600 A.2d 352, 355 (Del. 1991); State ex. rel. Green v. Foote, 168 A. 245, 247 (Del.
1933) (“When there are two Acts on the same subject the rule is to give effect to both if possible.
But if the two are repugnant in any of their provisions, the later Act, without any repealing clause,
operates to the extent of the repugnancy as a repeal of the first.”).
19
simply clarifies that for certain claims, Delaware courts may be the only forum, but they
cannot be excluded as a forum. Section 102(b)(1)’s general and broad provisions govern
all other claims. Thus, Section 115 is not properly viewed as modifying Section 102(b)(1).
Instead, Section 115 merely confirms affirmatively, as held in Boilermakers, that a
charter may specify that internal corporate claims must be brought in “the courts in this
State” (presumably, including the federal court),74 while prohibiting provisions that would
preclude bringing internal corporate claims “in the courts of this State.” Section 115, read
fairly, does not address the propriety of forum-selection provisions applicable to other
types of claims. If a forum-selection provision purports to govern intra-corporate litigation
of claims that do not fall within the definition of “internal corporate claims,” we must look
elsewhere (back to Section 102(b)(1)) to determine whether the provision is permissible.
This is because intra-corporate litigation relates to the business of the corporation (see
ATP), and such provision is authorized under Delaware law and is facially valid.
The Appellee’s “implicit prohibition” also fails to account for the fact that, when
the General Assembly enacted the 2015 amendments, it included explicit prohibitions
against fee-shifting (see Section 102(f)) and forum-selection provisions that precluded
litigation of internal corporate claims in Delaware state courts. The Appellee does not
74
“New Section 115 confirms, as held in Boilermakers Local 154 Retirement Fund v. Chevron
Corporation, 73 A.3d 934 (Del. Ch. 2013), that the certificate of incorporation and bylaws of the
corporation may effectively specify, consistent with applicable jurisdictional requirements, that
claims arising under the DGCL, including claims of breach of fiduciary duty by current or former
directors or officers or controlling stockholders of the corporation, or persons who aid and abet
such a breach, must be brought only in the courts (including the federal court) in this State.” Del.
S.B. 75 syn.
20
explain why the General Assembly, having explicitly prohibited certain provisions, did not
do so as to others—i.e., forum-selection provisions governing claims that are not internal
corporate claims—if that is what it intended to do. Had the General Assembly intended
for Section 115 to circumscribe the scope of Section 102(b)(1), it would have amended that
subsection in the 2015 amendments as well. Prohibiting fee-shifting provisions for internal
corporate claims in the new subsection (f) of Section 102, while leaving Section 102(b)(1)
untouched, does not indicate that the General Assembly intended to impliedly amend
Section 102(b)(1) to restrict its scope. Rather, it signals that the General Assembly
intended to leave the scope of Section 102(b)(1) intact. Courts do not impliedly amend or
supersede other statutes unless that intention is “manifestly clear.”75
Moreover, the synopsis of Section 115 suggests that Section 115 did not impliedly
amend Section 102(b)(1). The synopsis states, among other things, that “Section 115 does
not address the validity of a provision of the certificate of incorporation or bylaws that
selects a forum other than the Delaware courts as an additional forum in which internal
corporate claims may be brought.”76 Although this caveat is tethered to internal corporate
claims, the Appellee’s reasoning (that a forum-selection provision not expressly permitted
by Section 115, is implicitly prohibited) runs head-first into it. After all, if, Section 115’s
permissive provision defines the whole universe of permitted forum-selection provisions,
75
Foote, 168 A. at 247 (“Whether such statutes repeal the previously existing law, in the absence
of a repeal in express terms, depends upon the presence or absence of an irreconcilable
inconsistency between them, unless it is manifestly clear that the later enactment is intended to
supersede the earlier law and embrace the whole subject-matter.”).
76
Del. S.B. 75 syn.; see R. Franklin Balotti & Jesse A. Finkelstein, Delaware Law of Corporation
& Business Organizations, Statutory Deskbook 114-M (2017 ed.).
21
the synopsis’s clarification that provisions allowing “Delaware plus another” jurisdiction
should be written directly in the statute’s text. Without that direct permission, the expressio
unius doctrine should cause Section 115 to prohibit such “Delaware plus another”
provisions.77
Finally, the Appellee’s analogy between Section 115 and 102(b)(7) is a faulty one.78
These amendments differ in that, before the amendment of Section 102(b)(7), the default
under our common law was that such provisions were impermissible. The opposite is true
with respect to forum-selection provisions, which, prior to Section 115, were valid under
Section 102(b) and Section 109(b). It is logical for the express language of a permissive
statute like Section 102(b)(7) to designate the outer bounds of its scope if it were
impermissible initially. That is not the case with Section 115. Forum provisions were
valid prior to Section 115’s enactment.
77
The expressio unius est exclusio alterius doctrine (“expressio unius” for short) is “[a] canon of
construction holding that to express or include one thing implies the exclusion of the other, or of
the alternative.” Expressio unius est exclusion alterius, Black’s Law Dictionary (11th ed. 2019).
However, it “properly applies only when the unius (or technically unum, the thing specified) can
reasonably be thought to be the expression of all that shares in the grant or prohibition involved.
Common sense often suggests when this is or is not so.” Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 107 (2012); see also William N. Eskridge, Jr.
Interpreting Law: A Primer on How to Read Statutes and the Constitution 408 (2016) (stating
that, the expressio unius canon is “[i]napplicable if statutory purpose or context suggests listing is
not comprehensive”). Section 115 merely confirms, as held in Boilermakers, that charters and
bylaws may effectively specify that internal corporate claims must be brought in “the courts in this
State.” 2A Norman J. Singer, Sutherland Statutory Construction § 47:23 (7th ed.) (“[E]xpressio
unius is a rule of statutory construction and . . . is subordinate to the primary rule that legislative
intent governs the interpretation of a statute . . . .”).
78
See Answering Br. at 18–19 (arguing that, “Section 102(b)(7)’s express prohibition of some
exculpatory provisions . . . could be read to implicitly authorize any exculpatory provision not
expressly forbidden.”).
22
Read holistically, Section 115 indicates a concern for centering particular claims—
“internal corporate claims”—in Delaware. This makes sense given Delaware’s interest and
expertise in corporate law. As Section 11 claims are not “internal corporate claims,”
Section 115 does not apply.79 In sum, FFPs, which direct Section 11 claims to federal
courts (which are most experienced in adjudicating them), do not violate Section 115 and
are facially valid.
B. Section 102(b)(1) is Not Limited to “Internal Affairs” Matters
We disagree with the trial court’s analysis in a number of respects. Among them,
the Court of Chancery appears to have narrowed the broad enabling scope of Section
102(b)(1) in a way that is inconsistent with decisions by this Court and with the overall
statutory scheme in Title 8.
1. ATP Suggests FFPs are Permissible Under Section 102(b)(1)
FFPs involve intra-corporate claims. ATP concerned intra-corporate claims.80 ATP
supports the view that FFPs can fall within Section 102(b)(1) and be deemed facially valid.
In ATP, this Court considered certified questions regarding fee-shifting provisions
in the bylaws of a non-stock corporation. The plaintiffs were members of the defendant
ATP, a Delaware membership corporation that operated a global professional tennis tour.
79
Neither side in this case argues that Section 115’s definition of “internal corporate claims”
encompasses Section 11 claims. We think Section 115 likely was intended to address claims
requiring the application of Delaware corporate law as opposed to federal law. Stated differently,
we do not think the General Assembly intended to encompass federal claims within the definition
of internal corporate claims. Thus, Section 115 is not implicated. And the fact that Section
102(b)(1) was not amended indicates that it remains broad enough to address other than internal
corporate claims.
80
91 A.3d 554.
23
ATP amended its bylaws in 2006 to include a fee-shifting provision. The provision applied
to any claim asserted by a member against the corporation whereby the member was
required to reimburse the corporation for legal fees and costs incurred in connection with
litigating the claim if the member did not obtain a judgment on the merits that substantially
achieved, in substance and amount, the full remedy sought. Thus, the ATP bylaw
“applie[d] in the event that a member brings a claim against another member, a member
sues the corporation, or the corporation sues a member.”81 We referred to this scenario as
“intra-corporate litigation.”82
In 2007, ATP changed the tour schedule in a manner adverse to the plaintiff
members. The members sued ATP based on federal antitrust, Delaware fiduciary duty,
and other grounds. Specifically, the plaintiffs asserted that ATP and its Board violated
sections 1 and 2 of the Sherman Act (Counts I–IV of the complaint), breached their
fiduciary duties (Counts V–VII), tortiously interfered with the plaintiffs’ contractual and
business interests (Count VIII), and converted membership rights (Count IX). After trial,
ATP prevailed on all claims.83 Citing the fee-shifting bylaw, it then sought to recover its
litigation fees and costs. The District Court denied ATP’s motion, concluding that Article
23.3(a), the fee-shifting bylaw, was contrary to the policy underlying the federal antitrust
81
Id. at 557; see id. at 559.
82
See id. at 557, 558.
83
The District Court granted judgment as a matter of law to ATP and the individual defendants on
all of the state law counts, and to the individual defendants on the antitrust claims. A jury found
ATP not liable for any antitrust violations. The Third Circuit affirmed the judgment. Deutscher
Tennis Bund v. ATP Tour, Inc., 610 F.3d 820 (3d Cir. 2010), cert. denied, 562 U.S. 1064 (2010).
24
laws.84 It reasoned that federal law preempts the enforcement of fee-shifting agreements
where antitrust claims are involved.
ATP appealed to the United States Court of Appeals for the Third Circuit. The
Third Circuit vacated the District Court’s order, and held that the District Court should
have decided whether Article 23.3(a) was enforceable as a matter of Delaware law before
addressing the federal preemption question.
After finding that the enforceability of the fee-shifting bylaw presented a novel
question of Delaware law, the District Court certified four questions of law to the Delaware
Supreme Court. The first question, relevant here, asked:
May the Board of a Delaware non-stock corporation lawfully adopt a bylaw
(i) that applies in the event that a member brings a claim against another
member, a member sues the corporation, or the corporation sues a member
(ii) pursuant to which the claimant is obligated to pay for “all fees, costs, and
expenses of every kind and description (including, but not limited to, all
reasonable attorneys’ fees and other litigation expenses)” of the party against
which the claim is made in the event that the claimant “does not obtain a
judgment on the merits that substantially achieves, in substance and amount,
the full remedy sought”?85
Responding to this question, this Court held as follows:
A fee-shifting bylaw, like the one described in the first certified question, is
facially valid. Neither the DGCL nor any other Delaware statute forbids the
enactment of fee-shifting bylaws. A bylaw that allocates risk among parties
in intra-corporate litigation would also appear to satisfy the DGCL’s
requirement that bylaws must “relat[e] to the business of the corporation, the
84
Deutscher Tennis Bund v. ATP Tour, Inc., 2009 WL 3367041, at *4 (D. Del. Oct. 19, 2009),
vacated, 480 Fed. Appx. 124 (3d Cir. 2012). The District Court relied primarily on the Third
Circuit’s decision in Byram Concretanks, Inc. v. Warren Concrete Prods. Co. of N.J., 374 F.2d
649, 651 (3d Cir. 1967), which held that, “in the absence of specific legislative authorization[,]
attorneys’ fees may not be awarded to defendants in private anti-trust litigation.” Accordingly, the
District Court refused to give effect to Article 23.3.
85
ATP, 91 A.3d at 557.
25
conduct of its affairs, and its rights or powers or the rights or powers of its
stockholders, directors, officers or employees.” The corporate charter could
permit fee-shifting provisions, either explicitly or implicitly by silence.
Moreover, no principle of common law prohibits directors from enacting fee-
shifting bylaws.86
This Court held that the fee-shifting bylaw fell within both broad prongs of Section
102(b)(1)—namely, that it relates (i) to the “business of the corporation” and the “conduct
of its affairs,” and (ii) to the powers of the corporation or “the rights or powers of its
stockholders, directors, officers or employees.”87
The Court of Chancery suggests that since this Court was dealing with a facial
challenge in ATP, so long as the claims involved a state law breach of fiduciary duty claim,
that was enough for the bylaw in ATP to survive a facial challenge. It then states that our
Court in ATP “did not suggest that the corporate contract can be used to regulate other
types of claims.”88 We disagree with these points for at least three reasons. First, ATP
held that the fee-shifting bylaw fell within the scope of Section 109(b) and 102(b)(1). It
did not purport to define the outer limits of either Section 109(b) or 102(b)(1). Similarly,
Boilermakers only held that the forum-selection bylaw (which addressed only internal
affairs)89 easily fell within Section 109(b). Contrary to what the Court of Chancery
86
Id. at 558 (emphasis added).
87
Id.
88
Opinion, 2018 WL 6719718, at *13.
89
The bylaw provision in Boilermakers provided:
Unless the Corporation consents in writing to the selection of an alternative forum,
the Court of Chancery of the State of Delaware shall be the sole and exclusive
forum for (i) any derivative action or proceeding brought on behalf of the
Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by
any director, officer or other employee of the Corporation to the Corporation or the
26
suggests, Boilermakers did not establish the outer limit of what is permissible under either
Section 109(b) or Section 102(b)(1). Second, not even Appellants are contending that
Section 11 claims are “internal affairs” claims,90 because Section 11 claims are not
governed by substantive Delaware law. Rather, they are governed by federal law. But
Section 11 claims are often asserted along with parallel state fiduciary duty and disclosure
Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to
any provision of the Delaware General Corporation Law, or (iv) any action
asserting a claim governed by the internal affairs doctrine. Any person or entity
purchasing or otherwise acquiring any interest in shares of capital stock of the
Corporation shall be deemed to have notice of and consented to the provisions of
this [bylaw].
Boilermakers, 73 A.3d at 942. Although prong (iv) of this bylaw refers explicitly to “internal
affairs,” the Court of Chancery appropriately observed that all four prongs concern internal affairs.
Id.
90
During the oral argument before this Court, the following exchange occurred:
Justice Valihura: Are you arguing then, that these provisions are not within the
internal affairs doctrine as say articulated by Edgar v. MITE? And I think there the
U.S. Supreme Court said “matters peculiar to the relationships among or between
the corporation and its current officers, directors, and shareholders” and I think this
Court used a similar description in the VantagePoint case.
Mr. Chandler: You did. You did, a very similar description. My argument Your
Honor, our argument, is that these provisions are intra-corporate claims. They
touch upon the very same kind of internal relationships and conduct that the internal
affairs doctrine, the difference is, there’s only one difference. Even though the
claim is internal in the same sense as an internal affairs claim, it doesn’t arise under
the same law. It arises under federal law. That’s the only difference. Otherwise,
it’s the same relationships involved, boardroom conduct, stockholder status as a
stockholder. That’s the same thing as it is in an internal affairs claim, but it’s not
the same because it arises under a different law. And our point is a simple one, just
because it arises under federal law, doesn’t mean that it is now an external claim.
That suddenly translates into an external claim, no it doesn’t. Because it involves
the same intra-corporate conduct as an internal affairs claim does. So they’re the
same. And that’s why they can be treated under our law the same and the forum
selection-provision can be applied to them. Just as this one, these three do.
Oral Argument Video at 21:55–23:22,
https://livestream.com/DelawareSupremeCourt/events/8952021/videos/200564724.
27
claims and very often involve the same or similar predicate facts and defenses.91 As such,
Section 11 claims are “internal” in the sense that they arise from internal corporate conduct
on the part of the Board and, therefore, fall within Section 102(b)(1). ATP supports, rather
than undermines, this conclusion. Third, the argument that ATP’s holding encompasses
only state law fiduciary duty claims ignores the significance in that case of the federal
antitrust claims as evidenced by this Court’s repeated mention of those claims, and this
Court’s repeated use of the phrase “intra-corporate litigation,” as opposed to the phrase,
“internal affairs” claims.92 At a minimum, this Court did not distinguish between the
validity of the bylaw’s application to the state law fiduciary claims and the federal antitrust
claims.
2. The Trial Court Improperly Restricted the Scope of Section 102(b)(1)
The Court of Chancery narrowly interpreted ATP by concluding that “intra-
corporate litigation” was synonymous with only the state law fiduciary duty claims.93 The
91
See Malone, 722 A.2d at 12.
92
Moreover, we think it is more likely that the “novelty” of the issue perceived by the federal court
seeking certification (and by this Court in accepting certification) involved the question of whether
a Delaware charter or bylaw provision could properly address an intra-corporate claim (e.g., a
federal antitrust claim) that was not an “internal affairs” claim.
93
This is evident from the following passage in the Opinion below, explaining this Court’s holding
in ATP:
Although the plaintiffs in the underlying action also asserted claims for antitrust
violations, tortious interference, and conversion, the Delaware Supreme Court
interpreted the certified question as only asking about the validity of the bylaw for
purposes of “intra-corporate litigation.” The Delaware Supreme Court then held
that the bylaw was facially valid because it “allocate[d] risk among parties in intra-
28
court then relied primarily on Boilermakers to suggest that Boilermakers defined the
permissible limits of Section 109(b) and confined it to only the “internal affairs” claims
that were the subject of the bylaw at issue there. In eliminating the potentially broader
reach of “internal” or “intra-corporate” claims (as evidenced by our holding in ATP), it
basically stated that everything other than an “internal affairs” claim was “external” and,
therefore, not the proper subject of a bylaw or charter provision.
To elaborate, the court below reasoned that, “[t]he Boilermakers distinction between
internal and external claims answers whether a forum-selection provision can govern
claims under the 1933 Act.”94 The court stated that, “a 1933 Act claim is external to the
corporation,”95 and then explained what it meant by an “external” claim:
Federal law creates the claim, defines the elements of the claim, and specifies
who can be a plaintiff or defendant. The 1933 Act establishes a statutory
regime that applies when a particular type of property—securities—is
offered for sale in particular scenarios that the federal government has chosen
to regulate. The cause of action belongs to a purchaser of a security, and it
arises out of an offer or sale. The defined term “security” encompasses a
wide range of financial products. Shares of stock are just one of many types
of securities, and shares in a Delaware corporation are just one subtype. A
claim under the 1933 Act does not turn on the rights, powers, or preferences
of the shares, language in the corporation’s charter or bylaws, a provision in
the DGCL, or the equitable relationships that flow from the internal structure
corporate litigation . . . .” The Delaware Supreme Court did not suggest that the
corporate contract can be used to regulate other types of claims.
Opinion, 2018 WL 6719718, at *13. But, there is nothing that suggests this Court narrowed its
focus so as to mean that “intra-corporate” litigation referred only to the state law fiduciary duty
claims.
94
Id. at *1.
95
Id.
29
of the corporation. Under Boilermakers, a 1933 Act claim is distinct from
“internal affairs claims brought by stockholders qua stockholders.”96
This result, it said, “derives from first principles.”97
But Boilermakers’ holding does not address external claims. Further, the dicta in
Boilermakers regarding “external” claims suggests that its definition of “external” claims
would exclude “intra-corporate” claims which, as explained above, do fall within Section
102(b)(1)’s broad scope. The two examples of external claims given in Boilermakers do
not relate to the “affairs” of the corporation or the “powers” of its constituents (a tort claim
for personal injury suffered by the plaintiff on the premises of the company or a contract
claim involving a commercial contract).98 As for these types of claims, no Board action is
present as it necessarily is in Section 11 claims, and those claims are unrelated to the
corporation-stockholder relationship. And in any event, the FFPs are limited to 1933 Act
claims. Thus, FFPs are not “external,” and Boilermakers does not suggest that they are.
But by creating a binary world of only “internal affairs” claims and “external”
claims, the Court of Chancery superimposed the “internal affairs” doctrine onto and
narrowed the scope of Section 102(b)(1)—contrary to its plain language. It then concluded
that Delaware corporations cannot regulate “external” claims that arise under the laws of
other jurisdictions.99 If our General Assembly wishes to narrow the scope of Section
96
Id.
97
Id. at *2.
98
See 73 A.3d at 952.
99
Commentators also have viewed the choice as a binary one. See, e.g., Mohsen Manesh, The
Contested Edges of Internal Affairs, 87 Tenn. L. Rev. (forthcoming 2020) (manuscript at 48)
(available at https://dx.doi.org/10.2139/ssrn.3435165) (“Delaware has much staked on the basic
30
102(b)(1) to be aligned perfectly with the boundaries of the internal affairs doctrine, it
could do so. But until then, it is the obligation of our courts to construe the plain language
of the statute.100
There is a category of matters that is situated on a continuum between the
Boilermakers definition of “internal affairs” and its description of purely “external” claims.
ATP suggests that certificate of incorporation provisions governing certain types of “intra-
corporate” claims that are not strictly within Boilermakers’ “internal affairs,” can be within
the boundaries of the DGCL, and specifically Section 102(b)(1). And because we are
dealing here with a facial challenge, it is possible to have a scenario where an FFP could
apply to an intra-corporate claim. For example, existing stockholders could assert that a
prospectus relating to shares of stock the directors were selling in a registered offering,
signed by the directors of a Delaware corporation, contained material misstatements and
omissions. That is enough to survive a facial challenge.
3. The Trial Court Also Narrowed the Definition of “Internal Affairs”
The Court of Chancery not only narrowed the scope of Section 102(b)(1), but it also
narrowed the definition of “internal affairs” from both the established definition in the
distinction that the [internal affairs] doctrine makes—the distinction between internal corporate
affairs versus external matters.”); see also id. at 54 (“So again, which is it? Are the rights of
shareholders arising under federal securities law—rights that arise upon the purchase or sale of a
corporation’s shares—an internal corporate affair or an external matter?”).
100
See In re Adoption of Swanson, 623 A.2d 1095, 1099 (Del. 1993) (“We have long held that our
courts do not sit as a superlegislature to eviscerate proper legislative enactments.” (citation
omitted)).
31
United States Supreme Court’s decision in Edgar v. MITE Corp.101 (which Boilermakers
follows) and this Court’s parallel definition in McDermott v. Lewis.102 The following
illustrates the point:
Table 1—Internal Affairs Definitions:
Edgar v. MITE Corp. McDermott v. Lewis Sciabacucchi v. Salzberg
“The internal affairs “Internal corporate affairs “A claim under the 1933 Act
doctrine is a conflict of laws involve those matters which does not turn on the rights,
principle which recognizes are peculiar to the powers, or preferences of the
that only one State should relationships among or shares, language in the
have the authority to between the corporation and corporation’s charter or
regulate a corporation’s its current officers, directors, bylaws, a provision in the
internal affairs—matters and shareholders.”104 DGCL, or the equitable
peculiar to the relationships relationships that flow from
among or between the the internal structure of the
corporation and its current corporation.”105
officers, directors, and
shareholders—because
otherwise a corporation
could be faced with
conflicting demands.”103
101
457 U.S. 624 (1982).
102
531 A.2d 206 (Del. 1987).
103
457 U.S. at 645 (citing Restatement (Second) of Conflict of Laws § 302, Comment b, pp. 307–
08 (1971)).
104
531 A.2d at 214 (citing Edgar, 457 U.S. at 645 and Restatement (Second) of Conflict of Laws
§ 313, Comment a (1971)).
105
2018 WL 6719718, at *1. The court also stated:
As the sovereign that created the entity, Delaware can use its corporate law to
regulate the corporation’s internal affairs. For example, Delaware corporate law
can specify the rights, powers, and privileges of a share of stock, determine who
holds a corporate office, and adjudicate the fiduciary relationships that exist within
the corporate form. When doing so, Delaware deploys the corporate law to
determine the parameters of the property rights that the state has chosen to create.
Id. at *2.
32
Focusing on the exact words used by the United States Supreme Court, the Delaware
Supreme Court, and our General Assembly, the Court of Chancery’s definition, on its face,
is narrower than the traditional definition of “internal affairs” as used in Edgar and
McDermott.
In Edgar, the United States Supreme Court reviewed a challenge to the Illinois
Business Take-Over Act, which imposed certain requirements for takeover actions that
were more onerous than the federal Williams Act regime. The United States Supreme
Court struck down the Illinois law on Supremacy Clause and Commerce Clause grounds.
It found that the Illinois law was a “direct restraint on interstate commerce and that it has
a sweeping extraterritorial effect. Furthermore, if Illinois may impose such regulations, so
may other States; and interstate commerce in securities transactions generated by tender
offers would be thoroughly stifled.”106 It also held that the local interests that Illinois
sought to protect did not outweigh the burden the law imposed on interstate commerce.
The United States Supreme Court then described the internal affairs doctrine as follows:
The internal affairs doctrine is a conflict of laws principle which recognizes
that only one State should have the authority to regulate a corporation’s
internal affairs—matters peculiar to the relationships among or between the
corporation and its current officers, directors, and shareholders—because
otherwise a corporation could be faced with conflicting demands.107
As applied to the Illinois law, the Court found that the internal affairs doctrine was “of little
use to the State in this context” because “[t]ender offers contemplate transfers of stock by
106
Edgar, 457 U.S. at 642.
107
Id. at 645.
33
stockholders to a third party and do not themselves implicate the internal affairs of the
target company.”108 Finally, the Court noted that the Illinois law extended to non-Illinois
corporations with principal places of business outside of Illinois, and “Illinois has no
interest in regulating the internal affairs of foreign corporations.”109
Five years later, in CTS Corp. v. Dynamics Corp. of America,110 the United States
Supreme Court stated:
It thus is an accepted part of the business landscape in this country for States
to create corporations, to prescribe their powers, and to define the rights that
are acquired by purchasing their shares. A State has an interest in promoting
stable relationships among parties involved in the corporations it charters, as
well as in ensuring that investors in such corporations have an effective voice
in corporate affairs.111
In CTS, the United States Supreme Court again reviewed a state takeover statute, this time
belonging to the State of Indiana. The Court ruled that this law did not violate the
Commerce Clause because the limited effect the tender offer rules had on interstate
commerce were outweighed by the State’s interest in defining attributes of its corporations’
shares and in protecting shareholders. The Court also noted that the “free market system
depends at its core upon the fact that a corporation—except in the rarest situations—is
organized under, and governed by, the law of a single jurisdiction, traditionally the
corporate law of the State of its incorporation.”112
108
Id.
109
Id. at 645–46.
110
481 U.S. 69 (1987).
111
Id. at 91.
112
Id. at 90.
34
In McDermott v. Lewis,113 this Court agreed with the scope of internal affairs
established by the United States Supreme Court:
Internal corporate affairs involve those matters which are peculiar to the
relationships among or between the corporation and its current officers,
directors, and shareholders. It is essential to distinguish between acts which
can be performed by both corporations and individuals, and those activities
which are peculiar to the corporate entity.114
As explained by this Court in McDermott, “[c]orporations and individuals alike
enter into contracts, commit torts, and deal in personal and real property.”115 As to these
types of matters, “[c]hoice of law decisions relating to such corporate activities are usually
determined after consideration of the facts of each transaction.”116 The choice of law
determination often turns on whether the corporation had sufficient contacts with the forum
state in order to satisfy the constitutional requirements of due process. But, “[t]he internal
affairs doctrine has no applicability in these situations.”117 “Rather, this doctrine governs
the choice of law determinations involving matters peculiar to corporations, that is, those
113
531 A.2d 206.
114
Id. at 214 (citing Edgar, 457 U.S. at 645 and Restatement (Second) of Conflict of Laws § 313,
Comment a (1971)); see also VantagePoint Venture P’rs 1996 v. Examen, Inc., 871 A.2d 1108,
1113 (Del. 2005) (“The internal affairs doctrine applies to those matters that pertain to the
relationships among or between the corporation and its officers, directors, and shareholders.”);
Sagarra Inversiones, S.L. v. Cementos Portland Valderrivas, S.A., 34 A.3d 1074, 1082 (Del. 2011).
115
McDermott, 531 A.2d at 214. These types of matters are clearly “external.”
116
Id. at 214–15 (citing Reese and Kaufman, The Law Governing Corporate Affairs: Choice of
Law and the Impact of Full Faith and Credit, 58 Colum. L. Rev. 1118, 1121 (1958)).
117
Id. at 215.
35
activities concerning the relationships inter se of the corporation, its directors, officers and
shareholders.”118
The Court in McDermott observed that, under Delaware conflict of law principles
and the United States Constitution, there are appropriate circumstances which mandate
application of the internal affairs doctrine. It held that Delaware’s well-established conflict
of laws principles required that the laws of the jurisdiction of incorporation (the Republic
of Panama) govern the dispute involving the Panamanian corporation’s voting rights. It
then explained that, “[t]he traditional conflicts rule developed by courts has been that
internal corporate relationships are governed by the laws of the forum of incorporation.”119
We stated that, “[t]he internal affairs doctrine requires that the law of the state of
incorporation should determine issues relating to internal corporate affairs.” 120
The McDermott decision rejected the notion that the more flexible Restatement
approach of “weighing” various interests should apply to internal affairs matters. It
observed that, following a California state court case in 1961 where a California court
upheld an order of the California Commissioner of Corporations directing a Delaware
corporation having major contacts with California to follow the cumulative voting
requirements imposed by California law, commentators had suggested a “conflicts
revolution” had started. The Court, citing the Restatement (Second) of Conflicts of Laws,
§§ 302–06, 09 (1971), observed that the “new” conflicts theory “weighs the interests and
118
Id.
119
Id.
120
Id.
36
policies of the forum state in determining whether the law of the forum—lex fori—should
be applied.”121 But in rejecting the idea that this “new theory” should apply to internal
affairs matters, this Court noted that, in reviewing cases over the prior twenty-six years, in
all but a few, the law of the state of incorporation had been applied. Citing a 1968 article,
this Court stated that the following statement had remained “apt:”
The umbilical tie of the foreign corporation to the state of its charter is usually
still religiously regarded as conclusive in determining the law to be applied
in intracorporate disputes. The fundamental reexamination of the nature of
conflict of laws over the past few years has virtually left foreign corporation
matters remaining as a pocket of the past in a subject area which has
otherwise been characterized by free inquiry, change and flux.122
It then stated that the policy underlying the internal affairs doctrine “is an important one,”
and it declined to “erode the principle” by applying the Restatement’s policy of weighing
the interests and policies of the forum state. Instead, “[g]iven the significance of these
considerations, application of the internal affairs doctrine is not merely a principle of
conflicts law.”123 Rather, “[i]t is also one of serious constitutional proportions—under due
process, the commerce clause and the full faith and credit clause—so that the law of one
state governs the relationships of a corporation to its stockholders, directors and officers in
matters of internal corporate governance.”124 Thus, we concluded that “the application of
121
Id.
122
Id. at 216 (citing Kaplan, Foreign Corporations and Local Corporate Policy, 21 Vand. L. Rev.
433, 464 (1968)) (emphasis added).
123
Id.
124
Id. “If the doctrine is only a choice-of-law rule, then any state is free to adopt or reject it.”
Hon. Jack Jacobs, The Reach of State Corporate Law Beyond State Borders, 84 N.Y.U. L. Rev.
1149, 1164 (2009).
37
the internal affairs doctrine is mandated by constitutional principles, except in ‘the rarest
situations,’”125 and that the alternatives present “almost intolerable consequences to the
corporate enterprise and its managers.”126
C. Section 102(b)(1) is More Expansive than Section 115’s Definition of Internal
Corporate Claims
As explained above, trial court erred in narrowing Section 102(b)(1) in a manner
that prohibits FFPs. In addition to the statutory construction points above, other aspects of
our statutory scheme show that Section 102(b)(1) is unquestionably broader than, and is
not circumscribed by, Section 115’s definition of “internal corporate claims.” This is
supported by the fact that other sections of the DGCL have an impact on conduct with
persons who are not yet stockholders, such as Section 202 (“Restrictions on Transfer and
Ownership of Securities”).127 Section 202(a) provides that transfer restrictions in a stock
certificate “may be enforced against the holder of the restricted security or securities or any
successor or transferee of the holder.”128 Section 202(b) authorizes charter provisions that
place “[a] restriction on the transfer or registration of transfer securities of a corporation,
125
McDermott, 531 A.2d at 217.
126
Id. at 216. See also VantagePoint, 871 A.2d at 1112 (“The internal affairs doctrine is a long-
standing choice of law principle which recognizes that only one state should have the authority to
regulate a corporation’s internal affairs—the state of incorporation.”).
127
8 Del. C. § 202. See also 8 Del. C. § 152 (regulating the form of payment of stock
subscriptions); 8 Del. C. § 157 (authorizing provisions governing the rights and options to acquire
stock). Further, DGCL Section 166, addressing stock subscriptions, provides that a “subscription
for stock of a corporation . . . shall not be enforceable against a subscriber, unless in writing and
signed by the subscriber or by such subscriber’s agent.” 8 Del. C. § 166.
128
8 Del. C. § 202(a).
38
or on the amount of a corporation’s securities that may be owned by any person or group
of persons.”129
Moreover, although it is clear that various provisions of our DGCL regulate certain
transactions by which one can become a stockholder, it is arguable, from a plain reading
of Section 115, that, in certain instances, claims arising from the purchase of stock could
be an “internal corporate claim.” For example, we observe that Section 111 was amended
in 2003 to empower the Court of Chancery to interpret, apply, enforce or determine the
validity of agreements pertaining to sales of stock by the corporation.130 The Court of
Chancery’s jurisdiction was expanded again in 2016 to include stock purchase agreements
whereby one or more stockholders of the corporation sells or offers to sell their stock, and
129
8 Del. C. § 202(b).
130
Section 111 was amended and restated in 2003. The 2003 version stated:
(a) Any civil action to interpret, apply, enforce, or determine the validity of the
provisions of . . . (2) any instrument, document or agreement by which a corporation
creates or sells, or offers to create or sell, any of its stock, or any rights or options
respecting its stock . . . [m]ay be brought in the Court of Chancery, except to the
extent that a statute confers exclusive jurisdiction on a court, agency, or tribunal
other than the Court of Chancery.
8 Del. C. § 111 (2003); Del. S.B. 127 syn., 142nd Gen. Assem. (2003). This revision covers
instruments, documents, or agreements pertaining to sales of stock by the issuing corporation,
including offering materials and purchase agreements, and thus could include persons who are not
yet stockholders. See Lewis S. Black, Jr. & Frederick H. Alexander, Analysis of the 2003
Amendments to the Delaware General Corporation Law 4 (2003) (noting that, “[a]s revised,
Section 111 goes well beyond covering actions involving charters and bylaws, and provides that
actions involving documents concerning the sale of stock, restrictions on transfer, proxy
relationships, voting trusts, mergers, conversions, domestications, and instruments required by any
provision of the General Corporation Law, as well as any action to interpret, apply or enforce any
provision of the statute, may be brought in [the] Court of Chancery”). The 2003 jurisdictional
expansion predates Boilermakers, issued by the Court of Chancery in 2013, and Section 115, which
was added to the DGCL in 2015. The General Assembly is presumed to be aware of the statutory
scheme. Hudson Farms, Inc. v. McGrellis, 620 A.2d 215, 218 (Del. 1993) (stating that, “it is
presumed that the General Assembly is aware of existing law when it acts”).
39
to which the stockholder or holders and the corporation are parties. 131 Section 115 includes
within its definition of “internal corporate claims,” claims “as to which this title confers
jurisdiction upon the Court of Chancery.”132 Accordingly, that language, on its face, could
include claims arising under Title 8 involving transactions with persons who are not yet
stockholders, but who are parties to a stock purchase agreement where jurisdiction is based
upon Section 111.
The trial court’s main argument for deeming Section 11 claims to be “external” is
that they arise from the purchase of shares, as opposed to share ownership. First, that is
not necessarily the case.133 Second, it does not matter as an FFP can survive a facial
challenge based upon claims asserted by existing stockholders. Third, as shown above, our
DGCL addresses a number of situations involving the purchase or transfer of shares. FFPs
regulating the fora for Section 11 claims involving at least existing stockholders are neither
“external” nor “internal affairs” claims. Rather, they are in-between in what might be
called Section 102(b)(1)’s “Outer Band,” as explained below.
131
Del. H.B. 371, 148th Gen. Assem. (2016). “The 2016 amendments expanded the Delaware
Court of Chancery’s jurisdiction under Section 111 to empower the Court to interpret, apply,
enforce or determine the validity of (i) stock purchase agreements whereby one or more
stockholders of the corporation sell or offer to sell their stock, and to which the stockholder or
holders and the corporation are parties (i.e., stock transactions), and (ii) agreements to sell, lease
or exchange the corporation’s property or assets, which, by the terms of the agreement, requires
that one or more of the corporation’s stockholders approve of or consent to the sale, lease or
exchange (i.e., asset transactions).” Jeffrey R. Wolters and James D. Honaker, Analysis of the
2016 Amendments to the Delaware General Corporation Law 1 (2016).
132
8 Del. C. § 115.
133
For a thorough discussion of this point, see Joseph A. Grundfest, The Limits of Delaware
Corporate Law: Internal Affairs, Federal Forum Provisions, and Sciabacucchi, 75 Bus. L. 1319
(2020).
40
D. FFPs as “Outer Band” Matters—Outside “Internal Affairs,” but Within
Section 102(b)(1)
The previous discussion lends to the inevitable conclusion that there is a category
of matters that is situated on a continuum between the Boilermakers definition of “internal
affairs” and its description of purely “external” claims. This conclusion logically follows
from the points established thus far: (i) Section 102(b)(1)’s plain language encompasses
“intra-corporate” matters that are not necessarily limited to “internal affairs;” (ii) our
Delaware definition of “internal affairs” is consistent with the United States Supreme Court
precedent; (iii) the Court of Chancery has narrowed our traditional definition of “internal
affairs;” and (iv) there are purely “external” claims, e.g., tort and commercial contract,
which are clearly outside the bounds of Section 102(b)(1). These points are illustrated in
Figure 1 below:
Figure 1:
41
Based upon our reasoning above, the universe of matters encompassed by Section
102(b)(1) is greater than the universe of internal affairs matters. This means that there is
an area outside of the “internal affairs” boundary but within the Section 102(b)(1) boundary
(between points B and C on Figure 1), which, for convenience, we refer to as Section
102(b)(1)’s “Outer Band.” It is well-established that matters more traditionally defined as
“internal affairs” or “internal corporate claims” are clearly within the protective boundaries
(from points A to B) of Edgar, McDermott, and their progeny, where only one State has
the authority to regulate a corporation’s internal affairs—the state of incorporation. There
are matters that are not “internal affairs,” but are, nevertheless, “internal” or “intra-
corporate” and still within the scope of Section 102(b)(1) and the “Outer Band,”
represented in Figure 1 between points B to C. FFPs are in this Outer Band, and are facially
valid under Delaware law because they are within the statutory scope of Section 102(b)(1),
as explained above.
The Court of Chancery unduly constricted the scope of “internal affairs” by using
“first principles.” Perhaps this was out of a concern that upholding FFPs might be viewed
unfavorably by our sister states and result in jeopardizing even the Edgar/McDermott-
protected “solid ground” represented from points A to B—the traditional “internal affairs”
or “internal corporate claims” territory. But Section 102(b)(1) makes room for FFPs in the
Outer Band, even if FFPs are outside the more traditional realm of “internal affairs.”
It is potentially problematic for our State to have a definition of “internal affairs”
that diverges from, and is narrower than, the long-established definition set forth in
Edgar/McDermott and their progeny. Further, its narrower focus, based upon self-limiting
42
“first principles,” could create confusion and erode the established borders of the internal
affairs doctrine, inviting encroachment from other jurisdictions into matters traditionally
governed by that doctrine.
E. FFPs Survive a Facial Challenge as a Policy Matter
The FFPs survive a facial challenge as a policy matter as well. FFPs do not offend
federal law and policy, nor do they offend principles of horizontal sovereignty.
1. FFPs Do Not Violate Federal Law or Policy
FFPs do not violate federal law or policy. We refer to Rodriquez de Quijas v.
Shearson/American Express, Inc.,134 where the United States Supreme Court held that
federal law has no objection to provisions that preclude state litigation of Securities Act
claims. Specifically, the Supreme Court upheld an arbitration provision in a brokerage
firm’s standard customer agreement that precluded state court litigation of Securities Act
claims. In enforcing the provision, the Court described it as “in effect, a specialized kind
of forum selection clause” that “should not be prohibited under the Securities Act, since
they, like the provision for concurrent jurisdiction [of federal and state courts], serve to
advance the objective of allowing buyers of securities a broader right to select the forum
for resolving disputes, whether it be judicial or otherwise.”135 The holding in Rodriguez
provides forceful support for the notion that FFPs do not violate federal policy by
narrowing the forum alternatives available under the Securities Act.
134
490 U.S. 477 (1989).
135
Id. at 482–83.
43
The Court of Chancery did not cite Rodriguez. It did address Cyan, but nothing in
Cyan prohibits a forum-selection provision from designating federal court as the venue for
litigating Securities Act claims.
Forum-selection provisions traditionally have been evaluated under the
Bremen/Ingres line of cases. In Ingres Corp. v. CA, Inc., this Court held that forum-
selection clauses are presumptively valid and enforceable under Delaware law.136 Ingres
follows United States Supreme Court precedent in M/S Bremen v. Zapata Off-Shore Co.
which requires courts to give as much effect as possible to forum-selection clauses,137 and
to “only deny enforcement of them to the limited extent necessary to avoid some
fundamentally inequitable result or a result contrary to positive law.”138 It is unlikely that
the Supreme Court in Cyan intended to limit Rodriguez or Bremen without explicitly
discussing those cases.139 Thus, we think the better view is that Bremen and Rodriguez
still govern the enforcement of such provisions.
136
8 A.3d 1143, 1146 (Del. 2010).
137
407 U.S. 1, 15 (1972). Generally, “charter provisions are presumed to be valid,” and the courts
will construe them “in a manner consistent with the law rather than strike down” the provisions.
Cedarview, 2018 WL 4057012, at *20. In Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585
(1991), the Supreme Court applied Bremen’s presumption of validity to forum provisions
continued in the fine print of cruise line tickets (which provisions were obviously not the subject
of bargaining).
138
Boilermakers, 73 A.3d at 949 (citing Bremen, 407 U.S. at 15). See also Bremen, 407 U.S. at
12 (holding that, “absent some compelling and countervailing reason [a forum-selection clause]
should be honored by the parties and enforced by the courts”).
139
“Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or
ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 468 (2001).
44
Appellee acknowledges that, “[t]here is no tension with the generic federal policy
in favor of traditional, contractual, forum-selection clauses,” and that, “[i]f sophisticated
investors want to bind themselves to a federal forum by contract, they can.”140 He further
acknowledges that, “Delaware generally enforces forum-selection provisions contained in
a contract.”141 FFPs, as charter provisions, must be subjected to, and approved by a vote
of the stockholders.142 The logic underlying the validity of traditional contractual forum-
selection clauses has some force in this stockholder-approved charter context.143
Other United States Supreme Court and Delaware Supreme Court cases in other
contexts support the position that FFPs are not violative of federal policy. For example, in
Matsushita Electric Industrial Co. v. Epstein,144 the United States Supreme Court held that
Delaware courts can settle claims subject to exclusive federal jurisdiction without violating
federal law or policy. Similarly, in Nottingham Partners v. Dana,145 this Court held that a
settlement approved by the Court of Chancery that provided for the extinguishment of
federal claims was valid and not violative of federal jurisdiction. If it is permissible for a
140
Answering Br. at 30 n.116.
141
Id. at n.117; see also Boilermakers, 73 A.3d at 953 (“The bylaws cannot fairly be argued to
regulate a novel subject matter: the plaintiffs ignore that, in the analogous contexts of LLC
agreements and stockholder agreements, the Supreme Court and this court have held that forum-
selection clauses are valid.”).
142
8 Del. C. § 242(b).
143
See also Richards v. Lloyd’s of London, 135 F.3d 1289 (9th Cir. 1998) (applying Bremen
analysis and holding that the anti-waiver provision of the 1933 Act did not void forum clause in
international agreements).
144
516 U.S. 367, 377, 382 (1996).
145
564 A.2d 1089 (Del. 1989).
45
Delaware state court to settle federal claims as part of a state court settlement (resulting in
the extinguishment of the federal claims), then it follows that a provision in a Delaware
corporation’s charter requiring stockholders of the corporation to litigate federal claims in
federal court is not violative of federal policy.
2. FFPs and Inter-State Policy
Perhaps the most difficult aspect of this dispute is not with the facial validity of
FFPs, but rather, with the “down the road” question of whether they will be respected and
enforced by our sister states. If FFPs are not “internal affairs” matters within the traditional
Edgar/McDermott sense, and are not “internal corporate claims” within the meaning of
Section 115,146 then does that suggest that Edgar’s protective boundaries may not fully
encompass FFPs? Assuming that may be the case, can and should FFPs, nevertheless, be
enforced by corporations when plaintiffs challenge them in state court?147 We believe the
answer is “yes.”
The question of enforceability is a separate, subsequent analysis that should not
drive the initial facial validity inquiry. But we recognize that it is a powerful concern that
has infused much of the briefing here. The fear expressed in some of the briefing is that
our sister states might react negatively to what could be viewed as an out-of-our-lane power
146
As stated above, we do not believe Section 11 claims come under Section 115’s definition of
“internal corporate claims.” If they were “internal corporate claims” within the meaning of Section
115, then arguably, they would run afoul of Section 115’s requirement that “no provision of the
certificate of incorporation or the bylaws may prohibit bringing such claims in the courts of this
State.” For a different view on this point, see Grundfest, supra note 133, at 1378–79.
147
This question was not a central focus of the briefing before us (which understandably centered
on the initial question now before this Court of facial validity).
46
grab. Some say that this perception, in turn, could invite greater scrutiny of even the well-
established and respected “internal affairs” territory. Or it could invite a move towards
federalization of our corporate law. These are legitimate concerns. Delaware historically
has, and should continue to be, vigilant about not stepping on the toes of our sister states
or the federal government.
But there are persuasive arguments that could be made to our sister states that a
provision in a Delaware corporation’s certificate of incorporation requiring Section 11
claims to be brought in a federal court does not offend principles of horizontal
sovereignty—just as it does not offend federal policy.
Given that FFPs are valid under Section 102(b)(1) even though they are not internal
affairs matters, what is the proper framework for analyzing matters in this Outer Band?
The analytical framework on each end of the continuum is fairly well-established. One
commentator has described the framework for internal affairs matters, and for external
matters, as follows:
Typical choice-of-law analysis weighs various factors to determine which
state has the most significant relationship to, therefore the greatest interest in
regulating, the parties and matters at issue. This is the analysis most courts
would apply to determine the law governing the corporation’s external
business activities, such as the corporation’s relationships with its
employees, contractors, suppliers, customers, and more broadly the general
public.
But with respect to internal corporate matters—matters involving the
relationship between the corporation, its officers, directors, and
shareholders—the internal affairs doctrine provides a different rule. Rather
than trying to determine which state has the most significant relationship and
47
interest in regulating these parties, the doctrine focuses instead on a single,
decisive factor: the corporation’s state of incorporation.148
Although FFPs are somewhere in-between, the rules for determining the validity of
forum-selection provisions in the contractual context lend themselves well to the corporate
charter context in Section 102(b)(1)’s Outer Band area. This is because corporate charters
are viewed as contracts among the corporation’s stockholders, as we recently reiterated in
BlackRock Credit Allocation Income Trust v. Saba Capital Master Fund, Ltd.149
Typically, in a contractual setting, the party seeking to avoid enforcement of a
forum-selection clause bears the burden of establishing that its enforcement would be
unreasonable.150 The subsequent court faced with an enforcement decision has a number
of safety valves, as our own courts have recognized. Relying on the Bremen/Ingres
principles, this Court recently observed that forum-selection clauses are “presumptively
148
Manesh, supra note 99, at 8–9 (emphasis added). See also First Nat. City Bank v. Banco Para
El Comercio Exterior de Cuba, 462 U.S. 611, 621 (1983) (“[T]he law of the state of incorporation
normally determines issues relating to the internal affairs of the corporation. Application of that
body of law achieves the need for certainty and predictability of result while generally protecting
the justified expectations of parties with interests in the corporation . . . . Different conflicts
principles apply, however, where the rights of third parties external to the corporation are at issue.”
(first emphasis added)).
149
2020 WL 131370 (Del. Jan. 13, 2020) (“Because corporate charters and bylaws are contracts,
our rules of contract interpretation apply.”).
150
Ingres Corp., 8 A.3d at 1146 (“Forum selection [ ] clauses are presumptively valid and should
be specifically enforced unless the resisting party [ ] clearly show[s] that enforcement would be
unreasonable and unjust, or that the clause [is] invalid for such reasons as fraud and overreaching.”
(citing Bremen, 407 U.S. at 15)); see also Bonnano v. VTB Hldgs., Inc., 2016 WL 614412, at *9
(Del. Ch. Feb. 8, 2016) (finding that under New York law, though forum-selection clauses are
presumed valid, the court may refuse to enforce it if the challenging party can show cause); Drulias
v. 1st Century Bancshares, Inc., 30 Cal. App. 5th 696, 703 (Cal. Ct. App. 2018) (“Ordinarily, the
party seeking to avoid enforcement of a forum selection clause bears the ‘burden of establishing
that [its] enforcement . . . would be unreasonable.’” (citation omitted)).
48
valid.”151 Given that we are addressing a facial challenge, we are not considering
hypothetical, contextual situations regarding the adoption or application of FFPs. Such “as
applied” challenges are an important safety valve in the enforcement context. As
emphasized in ATP, whether the specific charter provision is enforceable “depends on the
manner in which it was adopted and the circumstances under which it [is] invoked.”152
Charter and bylaw provisions that may otherwise be facially valid will not be enforced if
adopted or used for an inequitable purpose.153 Bremen identifies three bases on which
forum-selection provisions might be invalidated on an “as applied” basis: (i) they will not
be enforced if doing so would be “unreasonable and unjust;” (ii) they would be invalid for
reasons such as fraud or overreaching; or (iii) they could be not enforced if they
“contravene[d] a strong public policy of the forum in which suit is brought, whether
declared by statute or by judicial decision.”154 In this facial challenge, none of these
potential “as applied” challenges are implicated.
Given that many Section 11 claims closely parallel state law breach of fiduciary
duty claims, many of the same reasons requiring application of the internal affairs doctrine
151
Germaninvestments AG v. Allomet Corp., 2020 WL 414426, at * 11 n.63 (Del. Jan. 27, 2020)
(citing Ingres Corp., 8 A.3d at 1146); see also Prestancia Mgmt. Grp., Inc. v. Va. Heritage Found.
II LLC, 2005 WL 1364616, at *6 n.54 (Del. Ch. May 27, 2005); Mitek Sys., Inc. v. United Servs.
Auto Ass’n, 2012 WL 3777423 (D. Del. Aug. 30, 2012).
152
ATP, 91 A.3d at 558.
153
Id. (citing Schnell v. Chris-Craft, Indus., Inc., 285 A.2d 437 (Del. 1971)).
154
Bremen, 407 U.S. at 15.
49
would support the enforcement of FFPs.155 As this Court noted in McDermott156 and
VantagePoint,157 the internal affairs doctrine raises important Constitutional concerns—
namely, under the Fourteenth Amendment Due Process Clause, the Full Faith and Credit
Clause, and the Commerce Clause. Due Process concerns address the officers’ and
directors’ rights “to know what law will be applied to their actions,” as well as
stockholders’ “right to know by what standards of accountability they may hold those
managing the corporation’s business and affairs.”158 As this Court stated in McDermott,
“full faith and credit commands application of the internal affairs doctrine except in the
rare circumstance where national policy is outweighed by a significant interest of the
forum state in the corporation and its shareholders.”159 The need for uniformity and
predictability that FFPs address suggest that they fall closer to the “internal affairs” side of
the spectrum, which would argue in favor of deference being given to them.
155
Even if conflicts of law principles of the type typically applied to external claims were applied,
these principles support the validity of FFPs. The Restatement (Second) of Conflicts of Laws
explains that the needs of predictability and uniformity of result support application of the local
law of the state of incorporation. Restatement (Second) of Conflicts of Laws § 302, cmt. e (1971).
FFPs are designed to achieve such predictability and uniformity of result. Comment (g) to Section
302 of the Restatement explains that the law of the state of incorporation is applied “almost
invariably to determine issues involving matters that are peculiar to corporations.” Id. at cmt. g.
Comment (g) further explains that many factors and the force of precedent support this result
“except in the extremely rare situation where a contrary result is required by the overriding interest
of another state having its rule applied.” Id.
156
531 A.2d 206.
157
871 A.2d 1108.
158
McDermott, 531 A.2d at 216–17.
159
Id. at 218.
50
Further, a well-developed body of law, including Commerce Clause precedent,
already exists to prevent a valid state law from having extraterritorial application.160 “The
limits on a State’s power to enact substantive legislation are similar to the limits on the
jurisdiction of state courts. In either case, any attempt directly to assert extraterritorial
jurisdiction over persons or property would offend sister states and exceed the inherent
limits of the State’s power.”161 But as the Court of Chancery recognized in Boilermakers,
forum-selection provisions “are process-oriented,” and are not substantive.162 They
“regulate where stockholders may file suit, not whether the stockholder may file suit or the
kind of remedy that the stockholder may obtain on behalf of herself or the corporation.”163
Thus, FFPs, as procedural mechanisms, do not offend these constitutional principles.
Finally, Delaware forum provisions sanctioned by Boilermakers, and respected by
other states in recent years, are arguably more restrictive than FFPs. That is so because
they may require non-resident stockholders to litigate their internal affairs claims
160
See Singer v. Magnavox Co., 380 A.2d 969 (Del. 1977), overruled on other grounds by
Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983); see also FdG Logistics LLC v. A&R Logistics
Hldgs., Inc., 131 A.3d 842, 846 (Del. Ch. 2016) (concluding that A&R’s claim under the Delaware
Securities Act failed to state a claim for relief because it had not established the requisite factual
nexus between the challenged merger and Delaware to trigger application of the act, and observing
that A&R’s argument that the act automatically applied because of a Delaware choice-of-law
provision in the merger agreement “would lead to the bizarre result of converting a blue-sky statute
that the Legislature intended to regulate intrastate securities transactions into one that would
regulate interstate securities transactions”). Our Court affirmed that result. A&R Logistics Hldgs.,
Inc. v. FdG Logistics LLC, 148 A.3d 1171 (Del. 2016) (Table).
161
Edgar, 457 U.S. at 643 (citation and internal quotation marks omitted).
162
73 A.3d at 951.
163
Id. at 951–52; see also Rodriguez, 490 U.S. at 482 (finding that the arbitration clause is a
procedural provision, and that there is “no sound basis” for construing a prohibition on waiving
compliance with any provision of the 1933 Act to apply to the arbitration clause).
51
exclusively in Delaware—potentially far from their geographic home-base. By contrast,
FFPs require that non-residents bring Section 11 claims in federal court (which could be in
their home state).
In sum, FFPs, as a facial matter, do not violate principles of horizontal sovereignty.
F. The Fee Award
In view of our decision above, we reverse the fee award.
IV. Conclusion
FFPs are a relatively recent phenomenon designed to address the post-Cyan
difficulties presented by multi-forum litigation of Securities Act claims. The policies
underlying the DGCL include certainty and predictability,164 uniformity,165 and prompt
judicial resolution to corporate disputes.166 Our law strives to enhance flexibility in order
to engage in private ordering, and to defer to case-by-case law development. Delaware
courts attempt “to achieve judicial economy and avoid duplicative efforts among courts in
resolving disputes.”167 FFPs advance these goals.
Our General Assembly has also recognized the need to maintain balance, efficiency,
fairness, and predictability in protecting the legitimate interests of all stakeholders, and to
ensure that the laws do not impose unnecessary costs on Delaware entities.168 FFPs do not
164
Broz v. Cellular Info. Sys., Inc., 673 A.2d 148, 159 (Del. 1996).
165
Carvel v. Andreas Hldgs. Corp., 698 A.2d 375, 379 (Del. Ch. 1995).
166
Id.
167
Cantor Fitzgerald v. Chandler, 1999 WL 1022065, at *4 (Del. Ch. Oct. 14, 1999).
168
See, e.g., Del. S.J. Res. 12, 147th Gen. Assem. (2014).
52
violate that sense of balance as they allow for litigation of federal Securities Act claims in
a federal court of plaintiff’s choosing, but also allow for consolidation and coordination of
such claims to avoid inefficiencies and unnecessary costs.169
Finally, our DGCL was intended to provide directors and stockholders with
flexibility and wide discretion for private ordering and adaptation to new situations.170
“[T]hat a board’s action might involve a new use of plain statutory authority does not make
it invalid under our law, and the boards of Delaware corporations have the flexibility to
respond to changing dynamics in ways that are authorized by our statutory law.”171
For the reasons set forth above, we REVERSE the decision of the Court of
Chancery.
169
Much of the opposition to FFPs seems to be based upon a concern that if upheld, the “next
move” might be forum provisions that require arbitration of internal corporate claims. Such
provisions, at least from our state law perspective, would violate Section 115 which provides that,
“no provision of the certificate of incorporation or the bylaws may prohibit bringing such claims
in the courts of this state.” 8 Del. C. §115; see Del. S.B. 75 syn. (“Section 115 does not address
the validity of a provision of the certificate of incorporation or bylaws that selects a forum other
than the Delaware courts as an additional forum in which internal corporate claims may be brought,
but it invalidates such a provision selecting the courts in a different State, or an arbitral forum, if
it would preclude litigating such claims in the Delaware courts.” (emphasis added)).
170
See, e.g., Jones Apparel, 883 A.2d at 845 (“[Delaware corporations have] the broadest grant of
power in the English-speaking world to establish the most appropriate internal organization and
structure for the enterprise.”).
171
Boilermakers, 73 A.3d at 953. “[O]ur corporate law is not static. It must grow and develop in
response to, indeed in anticipation of, evolving concepts and needs. Merely because the [DGCL]
is silent as to a specific matter does not mean that it is prohibited.” Id.
53