Fee Shifting Bylaws in Delaware: The Facts on the Ground (Part 5)

In Kastis v. Carter, Counsel, therefore, committed that the company would not invoke the bylaw with respect to actions necessary to challenge the bylaw. The bylaw still threatened to grind the case to a halt since the risk remained that efforts to persue the challenge to the decision by the Special Committee would trigger application. Here as well, counsel for the company took the issue off the table: 

• Mr. Grant: But what prompted me to stand up is I have a suggestion for us all to consider for a different direction in which to go. Going back to my initial comment that we think the next step should be resolving the SLC motion to dismiss, we can make the same representation again with let's call it reasonable discovery, that we will not enforce the bylaw against plaintiff for time spent on the defense side for reasonable discovery, briefing and argument on the SLC motion to dismiss. And I think that then protects them.   

Primary materials, including the hearing transcript, in Kastis v. Carter can be found at the DU Corporate Governance web site.