In The Johns Hopkins University v. Alcon Laboratories, Inc., C.A. No. 15-525-SLR/SRF (D. Del. July 14, 2017), Senior Judge Robinson addressed the plaintiff’s objections to Magistrate Judge Fallon’s order defining the scope of a privilege waiver arising from the defendants’ reliance on advice of counsel. Although Judge Fallon ordered that the defendants produce “any additional documents…

In Stephenson v. Game Show Network, LLC, C.A. No. 12-614-SLR (D. Del. July 11, 2017), Judge Robinson denied the defendants’ motion for an exceptional case finding and attorneys’ fees under 35 U.S.C. § 285. Judgment had been entered against the plaintiff after the Patent Trial and Appeal Board found all claims of the asserted patent invalid,…

Two recent decisions of the Delaware Court of Chancery separated by only two weeks took seemingly contradictory positions regarding the extent to which corporate disclosures must be made clear in proxy statements and other SEC filings. In an order issued on March 7 in In re Columbia Pipeline Group Stockholder Litigation, C.A. No. 12152-VCL (Del. Ch.…

The World Imports and SRC Liquidation Opinions Section 503(b)(9) of the Bankruptcy Code[i] allows a creditor an administrative expense claim (i.e., a claim with payment priority over other pre-bankruptcy claims) for the value of goods that the debtor “received” within 20 days before filing for bankruptcy. But what precisely does “received” mean in this…

These Standard Clauses are a representative set of separatenessrequirements that a lender may require in a borrower’sorganizational documents and loan documents. These StandardClauses contain integrated drafting notes with importantexplanations and drafting and negotiating tips.…

The Delaware Supreme Court surprised the mortgage lending community in April with its opinion in J.M. Shrewsbury v. Bank of New York Mellon. In Shrewsbury, the Court held that to foreclose on a mortgage the holder of the mortgage must also be the party entitled to enforce the underlying obligation secured by that mortgage. Stated differently,…

In LCT Capital, LLC v. NGL Energy Partners LP, C.A. No. N15C-08-109-WCC-CCLD, Special Discovery Master Kevin F. Brady granted a motion by defendants NGL Energy Partners LP and NGL Energy Holdings LLC’s (collectively, “NGL”) to compel plaintiff LCT Capital, LLC (“LCT”) to supplement responses to interrogatories and revise privilege and redaction logs. In their motion to…

In CNH Industrial Am., LLC v. American Casualty Company of Reading, Pa., C.A. No. N12C-07-108-EMD-CCLD, Judge Davis held that defendant Travelers Indemnity Company (“Travelers”) must indemnify plaintiff CNH Industrial America, LLC (“CNH”) for defense costs in over 200 underlying asbestos-related lawsuits. In prior decisions, the Court determined that, among other things, Wisconsin law applied to the…

In Motors Liquidation Co. DIP Lenders Trust v. Allianz Insurance Co., C.A. No. N11C-12-022-PRW-CCLD, an insurance coverage suit concerning underlying asbestos claims against General Motors (“GM”), Judge Wallace granted summary judgment in favor of the plaintiff concerning transfer of rights, trigger, and the number of occurrences under the applicable insurance policy. The Court also granted the…

In the second quarter of 2017, the Delaware Superior Court's Complex Commercial Litigation Division issued a number of interesting decisions touching on contractually shortened limitations periods, insurance coverage issues, and contracts involving foreign defendants.