Judge Richard Seeborg's ruling, which addresses a question of first impression, is a big blow for Oracle, which had invoked a forum-selection provision in its bylaws in moving to dismiss two derivative suits involving allegations that Oracle fraudulently bilked the government out of millions of dollars by overcharging for software and licenses.

Privately held firms might best adopt elective forum selection provisions prior to an IPO, and publicly traded firms can adopt forum selection provisions in their charters or bylaws. Obtaining majority shareholder support for a charter amendment may be easier than some observers expect. If a corporation determines that it prefers not to amend its charter, board action is sufficient to amend the bylaws, as recently demonstrated by Chevron. The benefits of adopting a forum selection provision will likely exceed the costs for most entities. If this calculus is correct, there should be a large increase in the incidence of intra-corporate charter or bylaw forum selection provisions in coming years.

50/50 sounds incredibly high, but we don't doubt the part about the enormous SEC pressure to look into this, and plenty of folks have raised serious legal questions about the structure, particularly on the question of whether Goldman's Special Purpose Vehicle offers a way around the 499 investor limit.

"If Facebook is selling to [Goldman] knowing this is going to happen, then they are on their way to having to register the company as a public company with the SEC."