Recently, Senator Richard Blumenthal wrote a letter to the Securities and Exchange Commission asking that the "Commission protect investors and America’s capital markets from a serious and imminent threat." According to the Senator, this isn't an ordinary threat, this threat is "leaves shareholders unable to protect their interests; it undermines the integrity of our capital markets, threatens to decrease market participation, and ultimately puts America’s prosperity at risk." The threat? Fee shifting charter provisions. Here's what Senator Blumenthal wants the SEC to do:
I call upon the Commission to commence investigation of Alibaba Group Holding, Ltd., one of several companies that have elected to include fee-shifting provisions in their governing documents but failed to disclose it in offering statements. The SEC should label such provisions as major risk factors and require corporations to publicly disclose them before any initial public offering. More broadly, the SEC should clarify that fee-shifting provisions are inconsistent with federal securities law. At a minimum, I urge the SEC to refuse to permit registration statements to move forward for any company that includes these provisions in violation of our federal securities laws.
I was more than a little perplexed by Senator Blumenthal's claim that Alibaba Group Holding, Ltd. had failed to disclose the existence in its offering documents. In fact, Alibaba had filed its amended and restated memorandum articles of association as an exhibit to its registration statement on Form F-1 (Alibaba is a Cayman Islands company). They include the following provision:
Unless otherwise determined by a majority of the Board, in the event that (i) any Shareholder (the “Claiming Party”) initiates or asserts any claim or counterclaim (“Claim”) or joins, offers substantial assistance to or has a direct financial interest in any Claim against the Company and (ii) the Claiming Party (or the third party that received substantial assistance from the Claiming Party or in whose Claim the Claiming Party had a direct financial interest) does not obtain a judgment on the merits in which the Claiming Party prevails, then each Claiming Party shall, to the fullest extent permissible by law, be obligated jointly and severally to reimburse the Company for all fees, costs and expenses (including, but not limited to, all reasonable attorneys’ fees and other litigation expenses) that the Company may incur in connection with such Claim.
I was able to find this "undisclosed" provision in the company's public filings within seconds.
Senator Blumenthal also doesn't explain why it is right or fair for plaintiffs' law firms to play the tort lottery at the expense of shareholders who ultimately bear the costs of frivolous litigation.
You can read Senator Blumenthal's letter here.