In three recent memorandum opinions, Southpaw Credit Opportunity Master Fund v. Roma Restaurant Holdings (Del. Ch. Feb. 1, 2018), CompoSecure v. CardUX (Del. Ch. Feb. 1, 2018, revised Feb. 12, 2018), and In re Oxbow Carbon Unitholder Litigation (Del. Ch. Feb. 12, 2018), the Delaware Court of Chancery revisited the distinction between void…
Merger agreements often contain provisions reciting that the representations in the agreement are the sole representations relied on in entering the contract. Such clauses are known as anti-reliance clauses and, if properly drafted, can limit fraud claims. Merger agreements also typically contain “fraud carve-outs.” According to the ABA Private Target Mergers and Acquisitions Deal Points Studies,…
The U.S. District Court for the District of Delaware has announced that Senior Judge Sleet, who took senior status last year, will retire in the fall of 2018. Judge Sleet will continue to be assigned new civil cases, but certain cases on his docket have begun to be reassigned to other judges. According to the announcement,…
Consider this situation: A corporation isactively considering bankruptcy, yet it neverthelessasks counsel whether it can dividend$7 million to Series B stockholders. Counseladvises against the dividend, but the board of directorsapproves it anyway, and the company pays itonly six weeks before filing a bankruptcy case. This sounds like a bad idea, right? Surprisingly,perhaps not. The Fifth Circuit…
Two recent rulings of the Delaware Court ofChancery highlight the need to examine a stockholderplaintiff ’s objectives in seeking to inspect thecorporation’s books and records under Section 220of the Delaware General Corporation Law (DGCL).As is well known, a stockholder seeking to compelan inspection of books and records under Section220 must demonstrate a “proper purpose” for theinspection…
The Delaware Supreme Court recently overturned anopinion of the Delaware Court of Chancery holdingthat stockholder approval of an equity incentive planwith broad sub-limits on the number of shares availablefor grant to non-employee directors resulted inthe stockholders’ ratification of subsequent awards tothe directors. In essence, the Supreme Court held thatstockholders’ approval of an equity incentive plan willprovide…
In Princeton Digital Image Corp. v. Konami Digital Entertainment Inc., No. 12-1461-LPS-CJB (D. Del. Dec. 11, 2017), Chief Judge Stark denied Princeton Digital Image Corp.’s request to certify an interlocutory appeal of the Court’s denial of its motion to dismiss invalidity counterclaims. Several related lawsuits filed by Princeton Digital had been stayed during the pendency of…
In Integra Lifesciences Corp. v. Hyperbranch Medical Technology, Inc., No. 15-819-LPS-CJB (D. Del. Nov. 14, 2017), Magistrate Judge Burke granted in part the defendant’s motion to strike the plaintiffs’ price erosion and market-share apportionment damages theory as untimely. During discovery, the defendant had sought the plaintiffs’ damages theories and underlying facts. According to the Court, the…
In Morphosys AG v. Janssen Biotech, Inc., No. 16-221-LPS-CJB (D. Del. Oct. 26, 2017), Chief Judge Stark ordered the defendant Janssen Biotech Inc. to produce materials previously withheld as privileged. Janssen had relied on advice of counsel as a defense to willful infringement, but the parties disputed the scope of the resulting waiver. The plaintiff, Morphosys…
This update provides short updates on judicial decisions, trends, and notable events in the United States District Court for the District of Delaware, traditionally one of the three busiest jurisdictions for intellectual property litigation.