One agenda item for the upcoming meeting of the Investor Advisory Committee is a “Discussion of Issuer Adoption of Fee-Shifting Bylaws for Intra-Corporate Litigation”. This is indeed an interesting and timely topic in light of the Delaware Supreme Court’s holding in ATP Tour, Inc. v. Deutscher Tennis Bund, 2014 Del. LEXIS 209 (Del. May 8, 2014). But is this within the purview of the Investor Advisory Committee? After all, the question of enforceability of fee-shifting bylaws is a question of state contract, not federal securities, law.
One would have to be either credulous or contumacious to read into [the Dodd-Frank] statute a Congressional intent that the Investor Advisory Committee advise and consult with the Securities and Exchange Commission on matters of state contract law. So why is the Investor Advisory Committee being allowed to exceed its statutory purposes?
Once again, Keith Paul Bishop nails it.
