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Institutional Investors Unite Against Delaware's Fee-Shifting Ruling

December 3, 2014 | Posted in : Fee Jurisprudence, Fee Shifting, Legislation / Politics, Prevailing Party Issues

A recent Pensions & Investments blog post, “Institutional Investors Team Up Against Delaware Court Ruling on Legal Fees,” reports that the Delaware Supreme Court decision that lets companies shift legal fees to investors bringing lawsuits has public pension funds and other institutional investors up in arms.

A letter sent to Delaware Gov. Jack Markell by the National Conference on Public Employee Retirement System (NCPERS) and eight public unions representing public and private sector workers warns that the decision “eviscerates investor rights" beyond the state’s borders.

The letter joins an earlier call by the Council of Institutional Investors (CII) for Delaware lawmakers to restore investors’ legal rights that are now threatened by the decision in ATP Tour Inc. v. Deutscher Tennis Bund.  While the court allowed a private corporation to amend its bylaws to make litigants personally liable for attorney fees and expenses, public company boards of directors have embraced the ruling. 

More than three dozen companies have unilaterally adopted similar or even more restrictive fee-shifting provisions, said CII, whose members represent $2 trillion in assets, including the $187.1 billion California State Teachers’ Retirement System; New York City Police Pension Fund, New York City Fire Department Pension Fund and other funds in the $160 billion New York City Retirement System; and North Carolina Department of State Treasurer’s Office, which oversees the $88.4 billion North Carolina Retirement Systems.

Both groups are calling for the governor to take immediate action, including legislation to restrict or overturn the court’s decision and curb the adoption of fee-shifting bylaws by companies, many of which are incorporated in Delaware. 

“Pension plans are among the largest and most active institutional investors.  Approximately 70% of the typical public pension plan’s funding comes from investment returns.  As shareholders, pension plans must ensure integrity of their investments.  But as fiduciaries, pension plans cannot expose their capital – and their beneficiaries – to unreasonable financial risk,” said the letter from NCPERS, which represents $3 trillion in pension assets.  “No reasonable investor … would be willing to risk facing this type of uncontrollable financial exposure.”

NALFA also reported on this case and issue in ”Delaware High Court Upholds Fee-Shifting in Corporate Bylaws” and “Delaware Lawyers Draft Legislation to Protect Legal Fees” and ”Delaware Chancery Court Could Weigh in on Fee-Shifting”