Corporate law attorney and expert Claudia Allen has publisjed the 2012 version of her annual study of exclusive jurisdiction provisions. She tells me that:
The number of companies analyzed has grown from 82 in April 2011 to 195 as of December 31, 2011. While exclusive forum provisions are attractive to corporate America (as evidenced by the 27 S&P 500 constituents with such a provision), opposition has begun to appear in the form of policies from ISS, Glass Lewis and the Council of Institutional Investors, and non-binding shareholder proposals seeking the repeal of exclusive forum bylaws.
Her firm website reports that:
In response to concerns that the plaintiffs' bar is suing Delaware corporations "anywhere but Delaware," an increasingly large number of Delaware corporations (including Chevron, DIRECTV, Life Technologies and 24 other members of the S&P 500) have adopted charter or bylaw provisions requiring that derivative actions, fiduciary duty claims and other intra-corporate disputes be litigated exclusively in the Delaware Court of Chancery. These concerns are particularly acute in connection with the announcement of M&A transactions. Claudia H. Allen, chair of the Corporate Governance Practice Group, has published a January 2012 update of her Study of Delaware Forum Selection in Charters and Bylaws. TheStudy, which is based upon exclusive forum provisions adopted or proposed by 195 Delaware corporations, includes: a Trend Update, Key Findings and Recommendations, Charts illustrating Key Findings and a List of Companies Analyzed. The Study also discusses the 2012 policies adopted by ISS and Glass Lewis on forum selection and the first non-binding shareholder proposals seeking repeal of board-adopted forum selection provisions.
This is a tremendously useful resource. Download the study here.
