Muscular Bylaws: ATP’s Lessons of Continuing Relevance

The Delaware Supreme Court’s May 8 opinion in ATP Tour, Inc. v. Deutscher Tennis Bund, is a reminder that corporate bylaws can be muscular vehicles for addressing many aspects of corporate affairs, including innovative mechanics for resolving disputes between stockholders and fiduciaries. The swift response to ATP by the Delaware bar, and the anticipated amendments to the Delaware General Corporation Law, are also reminders that Delaware statutory law can change rapidly in response to emerging events in the marketplace. Finally, what will remain of ATP after the General Assembly acts (as seems likely) has important implications to the use of bylaws outside of the narrow area ATP addressed—fee-shifting—including, particularly, forum selection clauses.