On April 17, 2018, Delaware Governor John Carney signed into law House Bill No. 144 (as amended). This new legislation has three effects. First, it expressly limits the Delaware Department of Transportation’s acquisition of property to specified transportation-related needs. Second, greater limitations are imposed on acquisitions in advance of approved, final right-of-way plans. Finally, the new…

In Equity Trust Company v. Interactive Brokers LLC, C.A. No. N17C-05-252 WCC CCLD, Judge Carpenter granted a motion to dismiss after finding that the defendant’s interpretation was the only reasonable interpretation of the contractual agreement at issue. The dispute arose out of an agreement executed in 2000 between defendant Interactive Brokers LLC and Delaware Charter Guarantee…

In Imorphics Ltd. v. THINK Surgical, Inc., C.A. No. N16C-09-149-MMJ-CCLD, a special discovery master was tasked with resolving cross-motions to compel. The plaintiffs’ motion argued that the defendant, THINK Surgical, Inc., failed to sufficiently respond to certain interrogatories and requests for production. Specifically, the plaintiffs requested THINK to identify and quantify all damages it claimed to…

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…

In DecisivEdge, LLC v. VNU Group, LLC, C.A. No. N17C-05-584-WCC-CCLD, Judge Carpenter granted in part and denied in part the defendant’s motion to dismiss claims for, inter alia, breach of contract and fraudulent inducement. The dispute arose out of the plaintiff’s agreement to provide technology services to the defendant. The parties had entered into a series…

In the first quarter of 2018, the Delaware Superior Court’s Complex Commercial Litigation Division considered a number of disputes arising from contractual agreements and addressed issues ranging from the enforceability of liquidated damages provisions to whether termination fees are payable in the event a contract is not renewed.

In Arch Insurance Co. v. David H. Murdock, C.A. No. N16C-01-104 EMD CCLD, Judge Davis granted in part and denied in part the plaintiff insurers’ motion for summary judgment arguing that the insurers did not have a duty to indemnify the insureds. This dispute arose in connection with a settlement agreement reached in In re Dole…

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 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”…