APRIL 2026 | 21 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. occurring before, on, or after the enactment date of this Act,” except that it does not apply to pending or completed lawsuits, a series of litigation followed in Delaware, particularly from minority stockholders.29 In June, the Delaware Supreme Court accepted two certified questions from Clearway.30 The certified questions now in front of the Delaware Supreme Court en banc are: 1) “Does Section 1 of Senate Bill 21, codified at 8 Del. C. §144—eliminating the Court of Chancery’s ability to award ‘equitable relief’ or ‘damages’ where the Safe Harbor Provisions are satisfied—violate the Delaware Constitution of 1897 by purporting to divest the Court of Chancery of its equitable jurisdiction?”31 2) “Does Section 3 of Senate Bill 21 – applying the Safe Harbor Provisions to plenary breach of fiduciary claims arising from acts or transactions that occurred before the date that Senate Bill 21 was enacted – violate the Delaware Constitution of 1897 by purporting to eliminate causes of action that had already accrued or vested?”32 SENATE BILL 95 Senate Bill 95 (SB 95) was introduced April 8, 2025, and signed into law by the governor on June 30, 2025. It took effect Aug. 1, 2025. This act continues the practice of amending the DGCL periodically to keep it current and maintain its national preeminence.33 Sections 1, 3 and 4 amend §§102(f), 109(b) and 115 so that the same statutory safeguards that apply to certificate and bylaw provisions regulating internal corporate claims will also apply to certificate and bylaw provisions addressing the intracorporate affairs claims permitted under the reasoning of the Salzberg34 decision.35 In Salzberg, the Delaware Supreme Court held that corporate charter provisions that require claims under the Securities Act of 1933 (the “Securities Act”) to be filed in federal court are facially valid.36 The following outlines the key amendments and additional provisions contained in SB 95. Forum Selection Provisions (§115) Amended §115 specifies that a certificate of incorporation or bylaw provision addressing intracorporate affairs claims must be consistent with applicable jurisdictional requirements and must allow stockholders to bring the claims in at least one court in Delaware that has jurisdiction over such claims.37 Rather than specifically defining the types of noninternal claims that constitute intracorporate affairs claims, amended §115 authorizes forum selection provisions that relate to “the business of the corporation, the conduct of its affairs, or the rights or powers of the corporation or its stockholders, directors or officers.”38 Fee-Shifting Provisions (§§102(f), 109(b)) In 2014, the Delaware Supreme Court ruled a fee-shifting bylaw in a nonstock corporation as facially valid.39 The decision concerned a private tennis association, but it led some public corporations to try to add similar fee-shifting provisions to their own bylaws to discourage litigation. Then, in 2015, the Legislature swiftly amended the DGCL to invalidate the type of fee-shifting provisions in connection with an internal corporate claim.40 In 2025, through SB 95, the Legislature built upon the 2015 amendment by strengthening the existing ban and expanding it to cover certain intracorporate affairs claims.41 By adding “or in connection with any other claim that a stockholder, acting in its capacity as
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