On December 19, 2018, the Delaware Court of Chancery issued an opinion holding that Delaware law does not permit corporations to use charter provisions to require stockholders to litigate certain claims brought under the federal securities laws in a specific forum. In Sciabacucchi v. Salzberg, Vice Chancellor Laster determined that such forum-selection provisions are invalid and unenforceable to the extent that they require any claim under the Securities Act of 1933 (the “1933 Act”) to be filed only in federal court.
The decision built on case law providing that a corporation may include forum-selection clauses in its governing documents where the claims involve intra-corporate disputes stemming from the rights and relationships established under Delaware corporate law (including between corporations and stockholders), but may not do so for claims that are external to the corporate relationship, like those based on tort, contract, labor or environmental law. The decision may have implications for the use of other forum-selection provisions that mandate arbitration or contain class action waivers.
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