From CLS Blue Sky blog:
The Court’s ATP Tour decision created concern in some quarters that if the holding applied equally to Delaware stock corporations, it would deter potentially meritorious stockholder claims and also erode Delaware’s role as the leading arbiter of corporate jurisprudence in the United States. However, in the rush to address the concerns of the Delaware bar, it appears that the proposed legislative fix failed to even consider situations where fee-shifting provisions may be appropriate. Instead of invalidating all fee-shifting provisions included in stock corporations’ charters and bylaws, there might have been an attempt to evaluate the potential merit of a limited response to the ATP Tour decision, such as tailoring the amendments to include situations where, upon a balancing of the interests involved, fee-shifting provisions should be permitted. For example, should all intra-corporate suits be treated similarly (for example, claims involving a merger or acquisition compared to claims involving a private company internal conflict)?
Ultimately, it appears that an opportunity was lost to craft a solution to a well-established issue, the growing tide of intra-corporate stockholder litigation, that adequately balances the interests among: the corporations and the insurers that bear the cost of litigation and settlements for the suits settled on a “disclosure only” basis that result in little or no benefit to the stockholders whose interests are ostensibly being championed; the stockholders who truly have a legitimate grievance that would be effectively precluded from access to redress if fee-shifting bylaw and charter provisions were permitted; the State of Delaware to preserve its position as the dominant arbiter of corporate disputes; and other stakeholders, including the lawyers that derive their living from stockholder suits.