General Business Business Torts Civil Procedure

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Delaware Court Affirms Utility of Buyer Acknowledgment Clause in Dismissing Fraud Claim

In IAC Search, LLC v. Conversant LLC (f/k/a ValueClick, Inc.), 2016 WL 6995363 (Del. Ch. Nov. 30, 2016), the Delaware Court of Chancery provided a reminder on how potentially-overlooked contractual provisions could have a...more

Fraud and Performance Securities

Performance securities are an everyday feature of construction and engineering projects. It is increasingly common to see calls on performance securities challenged on the basis of "fraud". Two recent cases from the English...more

Delaware Law Updates – Pleading Breach of the Implied Covenant of Good Faith and Fair Dealing in the Publicly Traded Master...

In Dieckman v. Regency GP LP, --- A.3d ---, 2017 WL 243361 (Del. Jan. 20, 2017), the Delaware Supreme Court reversed the Court of Chancery[1] and held that the common unitholder plaintiff’s complaint properly stated a claim...more

Delaware Supreme Court Wastes No Words: Summarily Affirms In re Volcano Corp. Stockholder Litigation, Upholding Business Judgment...

On February 9, 2017, the Supreme Court of Delaware summarily affirmed the Court of Chancery’s decision in In re Volcano Corp. Stockholder Litigation which had dismissed plaintiffs’ complaint on defendants’ 12(b)(6) motion to...more

Selective Enforcement Not A Viable Defense to Non-Competition Agreements Under Ohio Law

Employers sometimes worry whether seeking to enforce their non-competes in some circumstances but not others might preclude enforcement altogether in the future. Not so, says one court. Applying Ohio law, the United States...more

Trascent Management Consulting, LLC v. George Bouri, C.A. No. 10915 (Del. Nov. 28, 2016)

In this opinion, the Delaware Supreme Court affirmed the Court of Chancery’s ruling that a company cannot avoid its advancement obligations by claiming in a summary proceeding that the advancement agreement was fraudulently...more

Misappropriation Versus the Copyright Act: Round 2 in the Fifth Circuit

A few months ago, Trade Secrets Watch covered the GlobeRanger Corp. case in which the Fifth Circuit joined 10 other circuits in determining that the Copyright Act does not preempt state trade secret misappropriation claims....more

Delaware Superior Court Explains Liability Of Signatory To Contract

This is an excellent review of when a signatory to a contract might be personally liable notwithstanding that he claims to have only signed in a representative capacity. Hint: contractual references to the signatory separate...more

How to Avoid the Implied Waiver of the Attorney-Client Privilege In Arizona Insurance Bad Faith Cases

In State Farm v. Lee, 199 Ariz. 52, 13 P.3d 1169 (2000) (En Banc), the Arizona Supreme Court first held that an Insurer can impliedly waive the attorney-client privilege (the “Privilege”) in a bad faith case, despite not...more

Guidelines to Assist an Insurer’s Analysis of Whether a Court Will Find an Implied Waiver of the Attorney Client Privilege in...

Because Arizona cases touching on this issue are copious, confusing, and complex, we note the following guidelines—though sometimes conflicting—have emerged from Lee and its progeny and will assist an Insurer’s analysis of...more

Tips to Avoid the Implied Waiver of the Attorney-Client Privilege in Arizona Insurance Bad Faith Cases

Although Arizona law regarding the implied waiver of the attorney-client privilege (the “Privilege”) is far from certain, an Insurer may avoid a waiver by following these tips...more

Court Of Chancery Holds That Wrong Forward Looking Statement Insufficient To Support Records Inspection

It is not enough that certain forward-looking statements failed to come true to justify requiring an inspection of corporate records. More evidence of wrongdoing is needed if your inspection is based on a theory of...more

Delaware Court of Chancery Rejects Bylaw That Required Supermajority Stockholder Vote to Remove Directors in Violation of 8 Del....

In Frechter v. Zier, C.A. No. 12038-VCG, 2017 WL 345142 (Del. Ch. Jan. 24, 2017) (Glasscock, V.C.), the Delaware Court of Chancery granted plaintiff’s motion for summary judgment on a declaratory relief claim and held that 8...more

Two States Buck FAA Preemption, While Alabama Stays the Course

Three state supreme courts tackled arbitration law in recent weeks: Alabama, North Carolina, and Rhode Island. Rhode Island reversed a construction arbitration award because it disagreed with the arbitrator’s analysis. ...more

A Fraud By Any Other Name: Seventh Circuit Holds That SLUSA Extends to Class Actions That Could Be Pursued Under Federal...

A divided panel of the Seventh Circuit recently held that the Securities Litigation Uniform Standards Act (“SLUSA”) requires any covered class action that “could have been pursued under federal securities law” to be brought...more

Defence & Indemnity - December 2016: V. SURETY AND BOND ISSUES

Alberta Court of Appeal confirms an obligee/trustee under labour and material payment bond has no legal duty to disclose the existence of such a bond to potential bond claimants until specifically asked about its...more

Fifth Circuit Affirms Denial Of Motion To Compel Arbitration Against Non-Signatory To Arbitration Agreement

The appeal arose from a consolidated case, originally three separate class actions, resulting from the alleged underfunding of Singing River Health System’s pension plan and KPMG’s alleged failure to detect that underfunding...more

Commercial Division Grants Preliminary Injunction in Shareholder Dispute

On January 6, 2017, Justice Charles E. Ramos of the Commercial Division issued an order enjoining two corporations from taking action in violation of a shareholders agreement of a third company. The case, Ciment v. SpanTran,...more

Retail Hospitality Newsletter - Late Fall 2016

Sudden cardiac arrest (“SCA”) is the largest cause of natural death in the United Statesand is responsible for approximately half of all heart disease deaths. SCA, however, is not a “heart attack” (i.e. an artery blockage)...more

Voluntary Dismissal of Contract Claims Leads to Involuntary Payment of Attorneys’ Fees

Recently, in Khan v. Shim, No. H041608 (Cal. Ct. App. Dec. 29, 2016) (“Khan”), the California Court of Appeal held where a plaintiff voluntarily dismisses an action involving contract and tort claims, Civil Code section 1717,...more

I.A.T.S.E. Local No. One Pension Fund v. General Electric Company, C.A. No. 11893-VCG (Del. Ch. Dec. 6, 2016) (Glasscock, V.C.)

In this memorandum opinion, the Court of Chancery rejected defendants’ argument that certain fiduciary duty claims asserted by a pension fund with respect to a squeeze out merger adhered to the stock received as consideration...more

UPDATE: BOSTON’S Founder and a Former Bandmate Still Seek Peace of Mind

We have written previously about Scholz v. Goudreau, No. 13-CV-10951 (D. Mass.); the case recently went to trial on the parties’ surviving claims, and they are now immersed in post-trial briefing....more

IAC Search, LLC v. Conversant LLC, C.A. No. 11774-CB (Del. Ch. Nov. 30, 2016) (Bouchard, C.)

In this memorandum opinion, the Court of Chancery dismissed pursuant to Rule 12(b)(6) Plaintiff IAC Search, LLC’s (“IAC”) claim against Defendant Conversant LLC, formerly known as ValueClick, Inc. (“ValueClick”), that it...more

Preserving or Eliminating Fraud Claims in M&A Transactions (Update)

In this April 2016 post, we addressed preserving or eliminating extra-contractual fraud claims in M&A transactions. In this follow-up, we discuss a recent Delaware Chancery Court decision that further clarifies the framework...more

The Ghost of Systems Past: “Big Data” Suits Loom, But Old Data Issues Remain Unresolved

2017 could be big for litigation over “Big Data” applications in insurance. This past year saw the filing of several “price optimization” class actions, and claims against a fraud detection tool, similar to the ones used by...more

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