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Delaware

March 14, 2023
Fed. Circ. Unsure Vanda's Sleep Med Hetlioz Is Patentable

A Federal Circuit panel seemed wary Tuesday of Vanda Pharmaceuticals' attempt to overturn a Delaware federal judge's decision invalidating four patents related to its sleep disorder treatment drug Hetlioz, questioning whether the drug's dosage and method of administration were obvious before the patents were issued.
March 14, 2023
Eos Energy SPAC Investor Sues B. Riley Sponsor In Del.

Bryant R. Riley, co-chairman of B. Riley Financial Inc., and others have been named in a Delaware Chancery Court stockholder action alleging misleading and inadequate disclosures leading up to a $320 million special purpose acquisition company deal for battery storage venture Eos Energy Storage LLC.
March 14, 2023
Chancery Nixes Most Stream TV Calls To Sanction Hawk

New media company Stream TV Networks Inc. has failed to persuade Delaware's Court of Chancery that Hawk Investment Holdings Ltd. should be sanctioned for discovery failures in the companies' long-running legal battle for control of the Philadelphia-based 3D television company's business.
March 14, 2023
Pa. Gas Co. Must Face Residents' Challenge To Project

In a precedential ruling Tuesday, the Third Circuit held that natural gas company Adelphia Gateway LLC can't duck a challenge from residents of a Pennsylvania township contesting its move to build a gas compressor in their area, with the panel rejecting the company's argument that a state environmental board lacked jurisdiction to handle the case.
March 14, 2023
Class Attys Seek $3M Fee For Mooted Del. E-Car Biz Suit

Attorneys for Mullen Automotive Inc. stockholders are seeking a $3 million fee award for a mooted consolidated suit in Delaware Chancery Court that challenged certain changes to the company's capital structure and plans to reincorporate in Maryland.
March 14, 2023
BlockFi, FTX In Talks To Pause Robinhood Stock Fight

Cryptocurrency platform BlockFi and an entity owned by former FTX CEO Sam Bankman-Fried told a Delaware judge Tuesday they will attempt to work out an agreement to pause disputes between them and FTX over the ownership of over $500 million in stock.
March 13, 2023
Densify Can't Reinstate $236M IP Win Before New Patent Trial

A Delaware federal judge has refused grant an injunction and reinstate Densify's $236 million jury verdict in litigation over claims the Canadian software-maker's Silicon Valley rival VMware Inc. ripped off Densify's cloud infrastructure patents, sending the case to a new trial after rejecting Densify's argument that it's been irreparably harmed.
March 13, 2023
Fed. Circ. Backs PTAB Decisions Upholding Sex Toy Patents

The Federal Circuit on Monday shot down appeals over Patent Trial and Appeal Board decisions upholding the validity of a handful of patents that describe a type of sex toy called the "Womanizer," developed by a German startup.
March 13, 2023
Dem. States Say Abrupt DACA End Means Billions In Losses

Democratic states said a full rollback of the Deferred Action for Childhood Arrivals program would mean losing billions of dollars in economic growth, urging a Texas federal judge to consider the states' reliance on it when deciding on a rule preserving the program.
March 13, 2023
SPAC Investor Sues Over 'Abysmal' $16B Mortgage Biz Merger

A special purpose acquisition company's investor says in Delaware Chancery Court that the SPAC's managers misled shareholders about a $16 billion merger with United Wholesale Mortgage so that they could reap a return from what turned out to be an "abysmal" deal.
March 13, 2023
Amazon's Win In Network IP Fight Erased By Federal Circuit

A Federal Circuit panel has thrown out a Delaware federal court decision that finalized a network patent owner's stipulation that Amazon didn't infringe two of its patents, saying the stipulation itself was "ambiguous."
March 13, 2023
Moelis Stockholders Sue In Chancery To Break CEO's Control

Moelis & Co. public stockholders took to Delaware's Court of Chancery Monday, seeking to invalidate a shareholders' agreement giving the investment bank's CEO and chairman broad control over its key decisions, from stock issues to contracts, dividend payments and senior officer choices.
March 13, 2023
Fed. Circ. Sets Bar For 'Motivation-To-Combine' Challenges

The Federal Circuit on Monday reversed another Patent Trial and Appeal Board decision that upheld one of many computer patents asserted against Intel in underlying infringement litigation, determining that the PTAB required too much evidence to establish a motivation to combine prior art.
March 13, 2023
FTX Says Ch. 11 Progress Justifies Plan Filing Extension

Saying it has taken significant strides in stabilizing its business since filing for bankruptcy four months ago, cryptocurrency exchange FTX Trading Ltd. asked a Delaware judge to extend the window during which it has the sole right to propose a Chapter 11 plan until September.
March 13, 2023
Kabbage Ch. 11 Plan Approved With Trustee Injunction Deal

The Chapter 11 plan of financial services provider Kabbage Inc. received bankruptcy court approval Monday in Delaware after the company agreed to limit the duration of an injunction of claims in a deal with the Office of the United States Trustee.
March 13, 2023
Catching Up With Delaware's Chancery Court

Delaware's Chancery Court last week saw new cases from shareholders of World Wrestling Entertainment, Kraft Heinz, Block Inc. and Grayscale Investments. It was also a big week for Bernstein Litowitz Berger & Grossmann LLP, which got approval from Chancery Court to take part in leading two consolidated cases and pocket its share of attorney fees from a multimillion-dollar court-approved settlement.
March 13, 2023
3rd Circ. Grants Amicus Bids Of Profs, Ex-Judge In LTL Case

The Third Circuit on Monday agreed to consider friend-of-court arguments by law professors and a former bankruptcy judge in support of the dismissal of Johnson & Johnson unit LTL Management LLC's Chapter 11 case, which they said was not made in good faith.
March 13, 2023
Disney Says Fla. 'Don't Say Gay' Suit Is 'Attorney-Driven'

The Walt Disney Co. has flagged a stockholder's suit demanding documents on the company's opposition to Florida's "Don't Say Gay" law as impermissibly motivated by "cultural impact" litigation aims and attorneys affiliated with the conservative Thomas More Society.
March 13, 2023
Del. Justices Uphold $2.2M Fee Shift In Pot Co. Fraud Suit

Delaware's Supreme Court has affirmed a Chancery Court decision that directed an investor in California-based cannabis venture Bloom Farms to pay the company roughly $2.2 million for attorney fees it incurred after he sued it.
March 10, 2023
Judge Not Convinced By DOJ's 'Say-So' In Vax IP Row

Deciding that it wasn't going to be immediately swayed by "the government's say-so," a Delaware federal court on Friday quickly turned down the Biden administration's efforts to subsume liability for part of a billion-dollar patent dispute over the ownership of the mRNA platform used in Moderna's COVID-19 vaccines.
March 10, 2023
Oak Street Health Suits Consolidated In Del., Leads Appointed

The Delaware Chancery Court has consolidated three derivative stockholder suits accusing officers and directors of Oak Street Health Inc. of failing in their duties by adopting an "unlawful business model that squarely rests on defrauding the U.S. Medicare system."
March 10, 2023
High Court Again Asked To Review Fed. Circ.'s 1-Line Orders

A one-time Qualcomm engineer whose patent company is accusing YouTube of ripping off a collection of his early web-era patents is the latest to ask the U.S. Supreme Court to look at the Federal Circuit's use of one-sentence Rule 36 rulings, this time in appeals of Patent Trial and Appeal Board decisions invalidating video playback patents.
March 10, 2023
SBF Judge Still Worried About 'Inventive' Bail Workarounds

A Manhattan federal judge appeared unsatisfied Friday with a proposed solution to disgraced FTX founder Sam Bankman-Fried's conduct while out on bail, saying the "very inventive and technologically savvy" defendant could still find ways to communicate with potential witnesses.
March 10, 2023
3 Firms Chosen For $43B Discovery-AT&T Suit In Del.

Labaton Sucharow LLP, Kessler Topaz Meltzer & Check LLP and Bernstein Litowitz Berger & Grossmann LLP have taken the helm of a Delaware Court of Chancery class suit challenging a Discovery Inc. controlling investor's allegedly coercive extraction of a $1.1 billion side benefit from a $43 billion merger last year.
March 10, 2023
Taxation With Representation: Gibson Dunn, Wachtell, Davis

In this week's Taxation With Representation, Solenis acquires Diversey Holdings, HNI Corp. purchases Kimball International, Altria buys NJOY Holdings, and Vistra acquires Energy Harbor.

Editor's Picks

DocuSign's Bad Conduct Warrants Fee Shift, Ex-CEO Says

DocuSign's ex-CEO wants the Delaware Chancery Court to order the e-signature company to pay at least $709,000 for legal fees he has incurred in litigation alleging the company tried to "bully" him into resigning from its board and made false filings saying he resigned as a director.

Expert Analysis

What To Expect From A Litigation Finance Industry Recession

There's little data on how litigation finance would fare in a recession, but a look at stakeholders' incentives suggests corporate demand for litigation finance would increase in a recessionary environment, while the number of funders could shrink, says Matthew Oxman at LexShares.
McDonald's Harassment Ruling And 'Mission-Critical Risk'

The Delaware Chancery Court's recent decision in the McDonald's case appears to have expanded the potential for Caremark liability beyond the parameters that many legal analysts had understood to apply, finding that maintaining workplace safety is a mission-critical risk for companies but also reinforcing the high bar for that liability, say attorneys at Fried Frank.
J&J Unit Ch. 11 Case Shows Texas 2-Step May Be Wrong Move

The Third Circuit's recent ruling in the Chapter 11 case of Johnson & Johnson's talc-related damages unit raises new questions about the viability of divisional merger transactions as a means to manage mass tort liabilities through bankruptcy, especially when there is a robust funding arrangement, say attorneys at Mayer Brown.
Del. Ruling Could Affect D&O Claims Beyond SPACs

A Delaware state court recently held in Clover Health v. Berkley Insurance that directors and officers of a post-merger entity were insured persons under a special-purpose acquisition company's D&O; policy, a ruling that could have potential ramifications for future D&O; claims in Delaware outside of SPAC deals, say Geoffrey Fehling and Janine Hanrahan at Hunton.
Justices' MoneyGram Opinion Could Spur State Legislation

The U.S. Supreme Court’s recent decision that federal law governs the escheatment of over $250 million in unclaimed MoneyGram checks provides clarity for some issuers, but aspects of related common law remain uncertain and states may take the opportunity to pass multistate escheatment legislation, say attorneys at Alston & Bird.
FDCPA Ruling Clarifies Bankruptcy-Related Case Precedent

For debt collectors and their counsel, a Puerto Rico federal court's recent decision in Carrasquillo v. CICA Collection Agency serves as a shield to potential Fair Debt Collection Practices Act claims in circumstances where a collector doesn't have knowledge of a consumer's bankruptcy filing, say attorneys at Troutman Pepper.
The Limits Of Arbitration Provisions In The ERISA Context

Although courts have viewed the Federal Arbitration Act as strongly favoring the enforcement of arbitration provisions, two recent decisions from the District of Delaware and the Tenth Circuit demonstrate that arbitration provisions that expressly forbid planwide relief are not likely to be enforced in ERISA cases seeking such relief, says Elizabeth Hopkins at Kantor & Kantor.
Justices Leave Questions Open On Dual-Purpose Atty Advice

The U.S. Supreme Court's recent dismissal of In re: Grand Jury on grounds that certiorari was improvidently granted leaves unresolved a circuit split over the proper test for deciding when attorney-client privilege protects a lawyer's advice that has multiple purposes, say Susan Combs and Richard Kiely at Holland & Hart.
Lessons In Chancery Toss Of Claims Against CoreLogic CEO

Attorneys at Fried Frank discuss key takeaways for boards, including justifications for accepting a lower takeover offer, following the Delaware Chancery Court's recent dismissal of claims that the ex-CEO of CoreLogic breached fiduciary duty during his $6 billion take-private sale of the company.
3 Emerging Legal Risks For Hospital-At-Home Programs

Given the massive recent expansions of the hospital-at-home model and its potential to fundamentally shift the way inpatient facilities deliver services, health providers considering long-term adoption should learn to navigate competing state and federal requirements designed for traditional hospital admission, say Devin Cohen and Brett Friedman at Ropes & Gray.
J&J Ch. 11 Dismissal Ignores Mass Tort Bankruptcy Principles

The Third Circuit's recent dismissal of LTL Management's Chapter 11 petition due to insufficient financial distress — even as the Johnson & Johnson subsidiary defends thousands of tort claims — runs contrary to decades of precedent in mass tort bankruptcies, says Douglas Smith at Aurelius Law.
2 Takeaways From 3rd Circ.'s J&J Bankruptcy Ruling

The Third Circuit's recent dismissal of J&J; subsidiary LTL Management's Chapter 11 bankruptcy petition may raise difficult questions for debtors trying to prove that they are in financial distress, as practitioners will have to grapple with an amorphous financial distress standard and the termination of a preliminary injunction currently staying myriad similar lawsuits, say attorneys at Hunton.
Steps Lawyers Can Take Following Involuntary Terminations

Though lawyers can struggle to recover from involuntary terminations, it's critical that they be able to step back, review any feedback given and look for opportunities for growth, say Jessica Hernandez at JLH Coaching & Consulting and Albert Tawil at Lateral Hub.
5 Ways Fed Crypto Statement Affects State Member Banks

Although driven by concerns about state member banks' crypto-asset activities, the Federal Reserve System's recent policy statement could also affect activities of uninsured state member banks, such as trust companies, and may even extend to state banks' noncrypto activities, say attorneys at K&L; Gates.
SPAC Tips For Retroactive Validation Of Shareholder Votes

The Delaware Chancery Court's recent Lordstown Motors decision illustrates how special purpose acquisition vehicles can seek retroactive validation of stockholder votes taken in contravention of Section 242 of the state's general corporation law, drawing on five crucial factors, say attorneys at Baker McKenzie.