Over the past few years, forum selection bylaws have become an established part of corporate governance. This trend has gained momentum during the past few months as such provisions have gained both judicial and legislative support. On the judicial side, most courts have enforced such bylaws. And, on the legislative side, recent amendments to Delaware law now provide statutory support for some uses of forum selection bylaws. This update provides more detail on these key developments and explores how companies should think about forum selection bylaws going forward.
Two hot topics in client conflicts have been client affiliate conflicts and advance conflict waivers. A recent decision in the Western District of Pennsylvania addressed the intersection of these two topics using a novel approach, construing a law firm’s advance waiver provision as an agreement that created client conflicts that would not otherwise exist. This article discusses the decision and provides suggestions on how law firms can insulate themselves from suffering similar unintended results.
Published by Bloomberg BNA, the treatise covers all aspects of the FINRA arbitration process, including prehearing matters, motion practice, hearings, and awards, and also provides a detailed guide to FINRA investigations and enforcement actions.
The Delaware Court of Chancery has again affirmed the validity of exclusive forum bylaws. This time the bylaw selected North Carolina, and not Delaware, as the forum. By honoring a choice of forum outside of Delaware, the case helps pave the way for a wider acceptance of exclusive forum bylaws. The case also suggests that an exclusive forum bylaw may be adopted on the eve of a merger, thus increasing the usefulness of these bylaws as a defense against multijurisdictional litigation in connection with a change of control transaction.
Conflicts of interest is an ethical area that poses many challenges for practicing lawyers. These challenges are particularly acute for lawyers who practice in transnational and international law firms. The authors address one of the most prickly of them in the foregoing article.
Parties often opt for arbitration to obtain confidentiality that is unavailable in court proceedings. This alert addresses two recent decisions that address the confidentiality of proceedings before the Delaware Court of Chancery. In these cases even the Delaware legislature, the agreement of the parties, and genuine confidentiality concerns could not trump the presumption of open public proceedings.
As we have previously noted, exclusive forum bylaws potentially offer protection from the risks of multi-jurisdictional litigation. Recent developments include the withdrawal of an appeal from a Delaware Court of Chancery decision that found such bylaws facially valid and additional feedback from proxy advisory firms. This alert provides an overview of questions that remain unresolved and provides guidance to companies and stockholders considering exclusive forum bylaws.
Delving into how exclusive forum charter and bylaw provisions limit certain types of shareholder litigation to the corporation’s jurisdiction of incorporation, this article outlines the potential to reduce or eliminate the cost and strategic difficulties of multijurisdictional challenges to corporate action.
Litigation and Arbitration
The firm handles major cases in federal and state trial and appellate courts, before government agencies, and in a wide variety of domestic and international arbitration settings. Our experience in civil litigation covers a number of substantive areas, including antitrust and unfair competition, bankruptcy litigation and counseling, class action defense, commercial disputes, directors and officers litigation, employment, healthcare litigation, partnership disputes, products liability, real estate litigation, and securities litigation.
Our attorneys have significant experience handling appeals before federal and state appellate courts across the country and regularly represent organizations as amicus curiae in appellate matters presenting legal questions with broad policy implications. The firm has successfully handled appeals in cases where we represented a party in the lower court and in cases where we have specifically been brought in for our appellate proficiency. Our attorneys have clerked for judges on numerous federal district and appellate courts.
With every dispute, in any forum, we offer thoughtful counseling before a decision is made to litigate, and we have substantial experience in negotiating favorable pre-litigation settlements for our clients where appropriate.
If a pre-litigation settlement is not feasible or advisable, we are skilled at using the pretrial process to put our cases in the best posture for disposition by motion, settlement, or trial. Our litigators are first-rate trial lawyers: we have successfully handled hundreds of trials, arbitration hearings, and administrative procedures in state and federal courts across the country and in every major type of arbitration forum. We have an outstanding record in high-stakes, high-profile litigation, including cases involving claimed damages in the hundreds of millions of dollars.
Our trial experience helps us manage the discovery process efficiently and cost-effectively by keeping the focus on the facts that will advance our claims or defenses at trial. And that same focus — along with our intensity, creativity, and negotiating skill — helps us settle cases on excellent terms.
Our litigation and arbitration team has been recognized in leading rankings publications. Legal 500 described the firm’s strong commitment to client service and praised us as “one of the best mid-sized firms.” It also noted that the firm “differentiates itself by the creativity and flexibility it brings to its work, enabling it to handle disputes across an incredibly wide number of subject areas.” Chambers recognized the firm’s strong financial litigation practice, and noted that our attorneys “put themselves in their clients' shoes and use litigation as a tool to advance their clients' causes or solve their problems in a creative, efficient and cost-effective manner.”
Bankruptcy Litigation and Counseling
Our attorneys have experience representing debtors, their directors and officers, secured and unsecured creditors, and equity holders in a wide range of bankruptcy and bankruptcy-related matters, including bankruptcy proceedings, out-of-court workouts, adversary proceedings, asset purchases, and the negotiated resolution of bankruptcy-related claims. We have represented public and private companies, private equity funds, and directors and officers in proceedings across the United States and internationally. We also regularly advise companies on how to limit their counterparty bankruptcy risk.
Class Action Defense
Our attorneys have extensive class action defense experience. We have represented major public companies – including manufacturers, consumer products companies, and financial services companies – in a broad range of putative class actions, including cases alleging products liability, product defects, consumer fraud, antitrust, false advertising, and securities law claims.
The firm's attorneys have successfully handled the most complex problems facing class action defendants by defeating motions for class certification, successfully arguing for removals and dismissals, enforcing class releases, and negotiating innovative settlements. Our lawyers have defeated class certification in over thirty consumer fraud class actions and have settled hundreds of liability cases on favorable terms.
Our lawyers also counsel clients on initiatives to address litigation risks and exposure, thus reducing the potential for future class actions. We strive to help our clients implement "best practices".
Our Chambers and Legal 500-recognized Commercial Litigation group represents clients in a broad range of complex commercial, business, and financial disputes in districts throughout the United States and in the international arena. We represent clients in lawsuits involving contract disputes, derivatives claims, breach of contract, shareholder disputes, fraud, tortious interference complaints, professional malpractice claims, unfair business practices, and private equity transactions. Our clients span multiple industries, including finance, software and technology, hospitality, and real estate.
Our attorneys employ their extensive trial experience to bring a strategic approach to each claim. We offer thoughtful counseling, and we scrupulously research each matter and are prepared to effectively and vigorously defend our clients at trial. We have successfully handled numerous trials, arbitration hearings, and administrative procedures in state and federal courts across the country and in every major type of arbitration forum. We have an outstanding record in high-stakes, high-profile litigation, including cases involving claimed damages in the hundreds of millions of dollars.
The firm has extensive expertise in all aspects of securities, shareholder, and derivative litigation. We have a deep understanding of complex financial products and the operations of the financial services sector, and we frequently represent broker-dealers, investment advisors, hedge funds, and private equity funds in securities litigation and FINRA arbitrations. Our Chambers and Legal 500-recognized Securities Litigation group has successfully represented clients in connection with the prosecution and defense of claims brought under the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Advisors Act of 1940, myriad SEC and FINRA regulations, and various state securities laws.
Our recent engagements include the defense of billion-dollar mortgage-backed securities class actions, the successful representation of a major broker dealer in multiple FINRA arbitrations related to the sales and marketing of auction rate securities, the representation of issuers and their senior executives in connection with claims of improper disclosure and securities fraud, and the representation of clients in litigation related to bond offerings. The firm is equipped to effectively handle the most complex securities cases in a manner that provides superior and cost-efficient results for our clients.
In addition to representing clients in over one hundred securities arbitrations, we recently authored a FINRA Arbitration and Enforcement treatise for Bloomberg BNA. It examines proceedings involving FINRA in its dual capacities as a forum for dispute resolution and as a securities industry regulator.
Arbitration and Mediation
The firm’s Arbitration and Mediation attorneys advise clients in connection with every aspect of arbitration, mediation, and other alternatives to traditional litigation. We handle substantial matters before a variety of domestic and international arbitration platforms, including the AAA, FINRA, ICC, JAMS, and UNCITRAL. We recognize that arbitration and mediation matters require a different approach from traditional litigation, and we guide our clients through the process in a cost-efficient and streamlined manner.
In addition to the advocacy done by our litigators, our corporate attorneys regularly advise clients on and negotiate arbitration clauses in prospective transactions. We provide advice on clauses relating to every aspect of arbitration, including forum choice, pre-dispute resolution negotiation and mediation, and arbitration rule selection and modification.
Our attorneys have significant experience handling appeals before federal and state appellate courts across the country in connection with a diverse range of issues. We also have substantial experience representing organizations as amicus curiae in appellate matters presenting legal questions with broad policy implications.
The firm has successfully handled appeals in state and federal courts, both in cases where we represented a party in the lower court and in cases where we have specifically been brought in for our appellate proficiency. Our attorneys have clerked for judges on numerous federal and state courts at both the trial and appellate levels, including U.S. District Courts for the Southern and Eastern Districts of New York and the Second Circuit Court of Appeals. Collectively, our attorneys have handled over 100 appeals.
Directors and Officers Litigation
Our attorneys have experience representing public and private companies (as well as investment banks and accounting firms) and their respective officers, directors, employees, partners, and affiliates in cases filed in federal and state courts. Our clients are major international, national, and regional public and private companies and their individual officers and directors. Our attorneys have handled all types of directors and officers litigation, including recovery actions brought by trustees of bankrupt publicly-traded companies, class actions under the federal securities laws, and claims charging directors, officers, and general partners with breach of fiduciary duty and related misconduct.
Antitrust and Competition Litigation
Our Antitrust and Competition Litigation practice includes all aspects of private civil litigation relating to antitrust and competition disputes, representing clients in both civil and criminal enforcement matters, and counseling businesses on a range of antitrust and competition matters integral to their operations, including compliance with applicable regulations. We offer a cross-border perspective, with Antitrust and Competition Litigation team members in New York, Washington, D.C., and Europe.
Our attorneys have decades of experience litigating civil antitrust and competition disputes in trial and appellate courts, including defending clients in class action suits against allegations of cartel behavior, litigating disputes among companies relating to allegations of monopolization and other exclusionary conduct, and defending clients in FTC and DOJ civil enforcement actions. We routinely coordinate with economic experts in formulating litigation strategy and in preparing and presenting claims and defenses.
We regularly assist companies and executives in enforcement proceedings relating to allegations of criminal violations of antitrust and competition law. Our team includes a former trial attorney for the Antitrust division of the U.S. Department of Justice who spent five years handling criminal antitrust cases as well as several other former federal prosecutors. In cooperation with our Chambers and Legal 500-ranked white collar defense team, our antitrust litigators have a superb record in achieving favorable results for clients facing government enforcement actions. Further, we have particular strength in helping companies navigate parallel government and civil actions, working with them to determine the most advantageous litigation strategy when facing multiple actions relating to the same conduct.
Our attorneys also regularly assist companies in evaluating antitrust concerns that arise in the regular course of business or when evaluating potential mergers, acquisitions, and other transactions with competitive implications, and in representing parties to such transactions before the FTC, DOJ, and federal courts, including filing pre-merger notifications under the Hart-Scott Rodino Act.
We regularly draft, implement, and advise on antitrust compliance programs and provide antitrust compliance training for our clients.
Two partners in our Antitrust and Competition Litigation practice have served in leadership roles within the ABA Antitrust Section for years, and our senior attorneys regularly lecture and write on issues of interest to the antitrust community.