Staying in the Delaware Corporate Governance Lane: Fee Shifting Bylaws and a Legislative Reaffirmation of the Rules of the Road

The Delaware legislature has taken steps towards the adoption of amendments to the Delaware General Corporation Law (DGCL) that would prohibit fee shifting provisions in the articles and bylaws. The language in the legislative proposal, however, addresses fee shifting provisions only in the context of "internal corporate claims." Some have raised concerns that this language would allow for fee shifting provisions that applied to other types of actions, including at least some cases brought under the securities laws. This piece suggests that in fact the Delaware General Corporation Law already prohibits the adoption of bylaws and certificate provisions that apply to causes of action unrelated to internal corporate claims. As a result, there was no reason for the Delaware legislature to expressly bar fee shifting provisions in these types of actions.

Representing Clients in the Marijuana Industry: Navigating State and Federal Rules

As the number of states legalizing medicinal and recreational marijuana increases and marijuana emerges as a growing lawful industry, lawyers find themselves in an awkward position. In most states, lawyers who represent clients in the marijuana industry risk discipline for assisting clients in the commission of a (federal) crime. Even in jurisdictions like Colorado, where the rules of professional conduct have been amended to permit lawyers to assist clients who comply with marijuana state laws, lawyers who are admitted to practice in federal courts risk being disciplined by these tribunals for assisting clients in the commission of a crime pursuant to the courts’ local rules of conduct. This short article explores the thorny issue of navigating state and federal rules of professional conduct while representing clients in the marijuana industry.