A recent Delaware Court of Chancery decision is noteworthy for its finding that the adoption of a forum selection bylaw implied consent to jurisdiction to the extent that it required lawsuits by stockholders against the company to be filed in Delaware. See In re: Pilgrim’s Pride Corp. Derivative Litigation, C.A. No. 2018-0058-JTL (consol.) (Del. Ch. Mar. 15, 2019).
The basic facts involved a challenge to the sale of a company that was orchestrated by the controlling stockholder who needed cash. On the same day as the acquisition, the board of the nominal defendant approved a Delaware forum selection bylaw. The court discussed the applicable standard of review and other topics, but the jurisdictional issues are more notable.
· The Court held that the controlling stockholder who appointed a majority of the board of the nominal defendant agreed to personal jurisdiction when it caused the company to adopt the Delaware forum selection bylaw—for claims covered by the forum bylaw.
· In rejecting the parent’s motion to dismiss for lack of jurisdiction, the Court explained that:
“on the same day that the Acquisition was approved, the Board voted unanimously to adopt a forum-selection bylaw, with the Director Defendants whom Parent controlled constituting a five-member majority of the nine-member Board. The bylaw made the Delaware courts the exclusive forum for breach of fiduciary litigation involving the Company. This decision holds that on the facts alleged, Parent implicitly consented to personal jurisdiction in this court for purposes of claims falling within the forum-selection bylaw.”
The court explained, however, that the better practice would be to specifically provide, when drafting contractual provisions, that personal jurisdiction is expressly agreed to in a particular form. See footnotes 5 to 8 which provide voluminous citations to authority and learned commentary on this topic.
There are many forum-selection clause cases featured on these pages, but this decision explores an aspect of forum-selection clauses that is not often analyzed directly by Delaware courts, as compared to other nuances.