Still No Certainty In Forum Selection For Derivative Litigation

Issuers facing threats of securities litigation have been trying to obtain as much certainty as possible concerning their potential exposure in such lawsuits for years.The effort has included attempts to have securities and corporate governance litigation filed in particular forums toeliminate overlapping lawsuits asserting essentially the same claims in different courts.As part of these efforts, issuers incorporated in Delaware have adopted forum selection provisions requiring that certain internal claims, including fiduciary duty claims and derivative claims, to be brought in the Delaware Court of Chancery only, and not in other state or federal courts.The Delaware courts approved these types of forum selection provisions in 2013 and most other state courts have agreed to enforce these forum selection provisions.