The Case Whose Name The Delaware Supreme Court Dare Not Speak

The big news yesterday in corporate jurisprudence was the Delaware Supreme Court's decision in Salzberg v. Sciabacucchi in which the Delaware Supreme Court upheld forum selection charter provisions that require claims under the Securities Act of 1933 to be brought in federal court.  As discussed previously in this space, federal and state courts have concurrent jurisdiction over these types of claims pursuant to Section 22 of the Securities Act (15 U.S.C. § 77v(a)).  However, the U.S. Supreme Court's decision in Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, 138 S. Ct. 1061 (2018) resulted in an escalation of state court filings because the Court found that '33 actions filed in state court were not removable to the federal courts.  Some Delaware corporations reacted by adopting charter provisions requiring that '33 claims be brought in federal court.

As a California lawyer, I was struck by the fact that the Delaware Supreme Court described, but could not bring itself to name a California Court of Appeal case:

"It [McDermott v. Lewis, 531 A.2d 206 (Del. 1987)] observed that, following a California state court case in 1961 where a California court upheld an order of the California Commissioner of Corporations directing a Delaware corporation having major contacts with California to follow the cumulative voting requirements imposed by California law, commentators had suggested a 'conflicts revolution' had started."

For those curious about the name of this unnameable case, it is Western Airlines, Inc. v. Sobieski, 191 Cal.App.2d 399 (1961).