A Gap Inc. shareholder suing to improve the clothier’s diversity efforts will battle current and former directors before the full Ninth Circuit over a corporation’s ability to use its bylaws to knock out a derivative claim filed on its behalf.

The judges may even address whether the species of derivative claim advanced by the stockholders—one arising from proxy statements—exists at all. And the case could create a circuit split, opening a path to the US Supreme Court.

Gap’s bylaws say all shareholder suits brought on its behalf—derivative suits—must be heard in Delaware state court. But some derivative claims, including one in this suit, can only be brought in federal court. The directors, pointing to the bylaws, say the investors’ suit is a legal impossibility.

A lower court, and a three-judge panel of the US Court of Appeals for the Ninth Circuit in May, agreed with the Gap directors. Then the full Ninth Circuit decided it needed to weigh in. Oral argument is set for Dec. 12.

Another court called a similar situation in an unrelated case “checkmate” in favor of the defendants.

If the case’s dismissal is upheld, that “will deprive investors of meaningful enforcement of securities laws and undermine corporate accountability,” said Micah Hauptman, an attorney for the Consumer Federation of America.

But bylaws specifying a particular forum “serve the interests of both corporations and their...

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