Business Litigation

News & Analysis as of

New Year, New Rules: More Changes to the Commercial Division Rules Coming in 2017

The New York Commercial Division is poised to continue its rules revamp, with six new rules proposals announced since October. While these proposals would not alter practice before the Commercial Division in the same manner...more

Court Of Chancery Addresses Who Is To Do Post-Closing Adjustments

Many contracts for the sale of a company have a provision addressing how the parties should resolve disagreements concerning post-closing adjustments to the sale price. Exactly who is to resolve those disputes (be it an...more

Court Of Chancery Examines Whether Derivative Demand Was Wrongfully Refused

Even after a board rejects a plaintiff-stockholder’s demand to bring a derivative litigation, the plaintiff may proceed to bring that derivative action if the plaintiff can show the demand was “wrongful.” Having conceded...more

Court Of Chancery Summarizes Law On Reliance Disclaimers

Large commercial contracts frequently try to limit a buyer’s remedies for any extra-contractual misrepresentations by the seller. Many Delaware decisions deal with disclaimers of extra-contractual representations and this...more

Delaware Supreme Court Rejects Fraud Defense To Advancement

Delaware strongly protects a party’s right to advancement of attorney’s fees. This decision holds that a claim of fraudulent inducement cannot be asserted as a defense in a contractual advancement case even when the fraud is...more

Superior Court Limits Contractual Indemnification To Third Party Claims

This decision holds that a general obligation to indemnify another party to a contract applies only to claims filed by a third party and not to claims between the parties to the contract itself. Hence, if you want to cover...more

Court Of Chancery Grants Dissolution On Conditions

This is an interesting decision in a small case. The Court granted the request to dissolve a Delaware entity in deadlock, but conditioned that dissolution on an agreement not to use the fact of dissolution in another...more

Delaware Supreme Court Explains Setoff And Recoupment

This decision explains the difference between a defendant’s right of setoff and recoupment. The key difference is that the right of setoff arises out of an independent transaction, while recoupment must be based on the same...more

The Corporate Litigant and Rule 30(b)(6) Depositions: The Duty to Prepare the Corporate Representative to Testify

On November 9, 2016, United States Magistrate Judge Paul D. Stickney (N.D. Tex.) entered an Order that serves as a reminder to corporate litigants and their counsel that the demands of Rule 30(b)(6) should not be disregarded...more

Contra Non Not Applicable: Louisiana Appellate Court Refuses to Find Exception to Running of Prescription

Sophisticated plaintiffs beware. In Bayou Fleet, Inc. v. Bollinger Shipyards, Inc., et al., the Louisiana Fourth Circuit Court of Appeal concluded that contra non valentem, a judicially created exception to prescription, did...more

Court Of Chancery Explains Fee Award In Appraisal Case

Plaintiffs’ attorneys in representative litigation may obtain awards of fees and expenses when their efforts prove successful and provide benefits to the represented class. This decision explains how the Court of Chancery...more

Delaware District Court Finds That Controlling Stockholder Claim Falls Outside Of Forum Selection Bylaw

Forum selection bylaws are a powerful tool for companies to avoid the burdens of multi-forum litigation. But those bylaws only cover the claims falling within their terms. Where, as here, the bylaw only covers fiduciary...more

Do Funders Deserve Benefit Fees?

The business of third-party funding of litigation is said to be rapidly growing. Typically, the entity putting up the money (a funder) signs a contract with a plaintiff to pay the costs of a lawsuit in return for a percentage...more

Webcast: Understanding and Defending State Consumer Protection Actions [Video]

Consumer protection or unfair and deceptive acts or practices statutes have been enacted in every state in an attempt to protect consumers from predatory, deceptive and unscrupulous business practices. While good intentioned,...more

Court of Chancery Explains When Contract Bars Tort Claims and Arbitration

This is a great decision on when the provisions of a contract bar tort claims of fraud and tortious interference. Briefly, when the contract speaks to an issue (e.g., expressly permitting certain acts, or imposing no duty to...more

Court Of Chancery Explains When To Expedite Disclosure Claims

This decision is helpful in clarifying that claims alleging disclosure violations in a proxy statement need to be pressed before a merger closes. ...more

Recurring Issues in Accounting for Litigation Contingencies

Certain questions seem to recur when it comes to outside counsel’s communications with a company’s auditors about potential exposures as a result of litigation or regulatory/enforcement matters and the underlying accounting...more

Del. Forum Non Conveniens Doctrine Doesn't Depend on Adequate Alternative Forum

Corporations sued in Delaware and subject to jurisdiction here sometimes employ the doctrine of forum non conveniens (FNC) to seek dismissal of the litigation if defending here would create an overwhelming hardship. In a...more

Court Of Chancery Rejects Fee Application From Litigation Funder

This is a decision worth reading because it so well tells an interesting story. But its legal significance may well be that it holds a litigation funding firm is not entitled to an attorney fee award at least when it does not...more

The Corporate Designee in Commercial Litigation – the Voice That Binds the Company

A corporate entity is regarded by the law as a “person” for purposes of standing to sue and be sued, but an organization, whether corporation, partnership, governmental organization, or other entity, can act only through its...more

Fair Value in Arm's-Length Third-Party Transactions

With the rise of appraisal arbitrage, an increasing number of appraisal petitions and an increase in the size of appraisal classes, corporate practitioners have closely followed recent appraisal decisions in the Delaware...more

NC Court Of Appeals, Not Sure That It Had Jurisdiction, Dismisses Appeal From Business Court Decision

How does your appeal get dismissed when you've appealed to the "right", "appropriate", or "correct" court? In other words, your appeal was to the Court with jurisdiction over your appeal. It happened in the NC Court of...more

Alert: What US GCs Should Know About Litigation Funding in England & Wales

The situation may be a familiar one: a client with a meritorious claim, but insufficient financial resources (or even C-suite support) to pursue matters. In this tip sheet, we explain how the continued growth of litigation...more

Business Litigation Report - March 2016

How Major Changes to the Federal Rules of Civil Procedure Will Impact Business Litigation - The Federal Rules of Civil Procedure govern all civil litigation in the federal courts. Recent major amendments to these...more

How Major Changes to the Federal Rules of Civil Procedure Will Impact Business Litigation

The Federal Rules of Civil Procedure govern all civil litigation in the federal courts. Recent major amendments to these rules—which became effective December 1, 2015—will impact the scope and cost. The amendments...more

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