In Continental Finance Company, LLC v. TD Bank, N.A., C.A. No. N17C-07-002 MMJ CCLD, Judge Johnston granted a motion to dismiss a negligence case arising out of an embezzlement scheme perpetuated by a non-party. Plaintiff Continental Finance Company, LLC sued defendant TD Bank, N.A. for negligence and alleged that TD Bank negligently failed to detect an…

Liquidated damages provisions are common in many commercial contracts. Such provisions allow parties to determine in advance the measure of damages of a party that breaches the agreement. Not all such provisions are enforceable, however. Under Delaware law, determining whether a stipulated sum is a proper liquidated damages provision requires a two-part test. S.H. Deliveries, Inc.…

Brokers may vote uninstructed shares only on matters that are discretionary under NYSE Rule 452. The authors discuss the NYSE rule and the effect of broker non-votes under various voting and quorum standards under Delaware law. They suggest practitioners be particularly attentive to the disclosure of the effect of broker non-votes in proxy statements. They also…

In Wi-Lan Inc. v. Sharp Electronics Corp., No. 15-379-LPS (D. Del. Sept. 22, 2017, unsealed Feb. 15, 2018), Chief Judge Stark denied the plaintiff’s request that its voluntary dismissal under Fed. R. Civ. P. 41(a)(2) of one of the asserted patents be without prejudice and that each party bear its own fees and costs. The plaintiff…

In D&M Holdings Inc. v. Sonos, Inc., No. 16-141-RGA (D. Del. Feb. 20, 2018), Judge Andrews granted summary judgment that one of the patents asserted by the plaintiffs was invalid under 35 U.S.C. § 101 as directed to ineligible subject matter. The patent at issue claimed a method of recalling previous audio preferences when playing a…

In Ansell Healthcare Products LLC v. Reckitt Benckiser LLC, No. 15-915-RGA (D. Del. Jan. 30, 2018), Judge Andrews granted Reckitt Benckiser LLC’s motion for summary judgment of no willful infringement and no enhanced damages. The plaintiff, Ansell Healthcare Products LLC, argued that Reckitt’s alleged infringement was willful because it sold the accused products even though it…

In Thermo Fisher Scientific Inc. v. Agilent Technologies, Inc., No. 17-600-LPS-CJB (D. Del. Feb. 5, 2018), Magistrate Judge Burke ordered the parties to reduce in two stages the number of asserted claims and prior art combinations involving the three asserted patents. The plaintiffs first were ordered to reduce the number of asserted claims to 40, then…

In Acceleration Bay LLC v. Activision Blizzard, Inc., No. 16-453-RGA (D. Del. Feb. 9, 2018), Judge Andrews overruled objections to a special master’s order compelling production of emails that had been withheld as privileged between the plaintiff, Acceleration Bay LLC, and a litigation financing company. Acceleration Bay resisted production on three bases: the work-product doctrine, the…

In Foundation Medicine, Inc. v. Guardant Health, Inc., No. 17-807-LPS-CJB (D. Del. Feb. 15, 2018), Magistrate Judge Burke granted in part the plaintiff’s motion to stay pending inter partes review of the defendant’s three IPR petitions. Among the three petitions, the deadlines for the Patent Trial & Appeal Board’s final written decisions ranged from one…

In Kelly Services, Inc. v. Kelly & Associates Financial Services, Inc., No. 16-408-JFB-SRF (D. Del. Feb. 26, 2018), a trademark case, Magistrate Judge Fallon denied the plaintiffs’ unopposed request to re-assign the case to another judge. The basis for the plaintiffs’ request was that Judge Fallon had conducted a mediation with the parties in which “substantive”…