Fee shifting trenches

Ted Mirvis and Bill Savitt of Wachtell Lipton have weighed in on Delaware's anti-fee shifting legislation.  Basically, they argue that this is the kind of thing that doesn't require legislation – that we should all defer to the wisdom of Delaware's chancellors.  All the while, they know they will encourage every client they have to adopt the fee shifting provisions. That's the way it goes I suppose.  Here's their white paper on the fee shifting issue (and an abstract): 

The frenzy over fee-shifting bylaws and charter provisions is no surprise. Anything that addresses the economics of the game so directly is cause for either alarm or implementation, depending on the side of the caption. And in a world where intracorporate litigation is ubiquitous, and very profitable even though far more derivative and class suits lose than win, no change in substantive law would have quite the bite. In our view, however, the calls to resolve the fee-shifting debate by legislative fiat are misguided. The Delaware courts should be allowed to do what only they can: address the propriety of fee-shifting provisions carefully, contextually, and incrementally.

-bjmq