Federal Rule 12(b)(6) Motion to Dismiss

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CG Technology v. DraftKings: District Court Stays Discovery Pending Motion to Dismiss Challenging Validity of Asserted Patents...

DraftKings filed a motion to stay discovery until the district court had an opportunity to rule on the a motion to dismiss. The motion to dismiss asserted that all of the ten patents-in-suit were invalid because they claimed...more

Court of Chancery Explains When Corporate Overpayment Claims Require Demand Futility

The issuance of additional stock in exchange for less than fair value typically is a harm falling on the company, and hence gives rise to a derivative claim. But, such a claim might be dual natured – partially direct and...more

Court Of Chancery Holds Release Is Binding On A Non-Signatory

It may surprise many of us to know that a party who does not sign a general release may still be bound by its terms. Yet, that is what this decision holds under this case’s facts, which involved New York law and a release...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

SDNY Refuses to Dismiss Executive’s Dodd-Frank Retaliation Claim

On August 24, 2016, the Southern District of New York denied Defendants’ motion to dismiss a Dodd-Frank whistleblower retaliation claim brought by its former co-CEO and Executive Chairman of its Board of Directors, finding...more

Leaving a Tart Taste in One Processor’s Mouth: Court Dismisses Claims of a Plaintiff Subject to the Tart Cherry Order

Agricultural law can often be complicated, but it is not always this "tart." Burnette Foods, a tart cherry processor in Michigan, has found itself in an ironic position: it is subject to a law that was enacted with...more

No Way Out for Door Patent

On September 12, 2016, District Judge John G. Koeltl (S.D.N.Y.) granted the defendants’ motions to dismiss for failure to state claim of patent infringement under Federal Rule of Civil Procedure (“FRCP”) 12(b)(6). Claims...more

Court Of Chancery Again Explains Scope Of The Corwin Doctrine

This is one of two recent Court of Chancery decisions explaining that the Corwin case really does mean that there is an “irrebuttable business judgment rule” that bars challenges to a merger approved by a majority of the...more

Whistleblower’s Claim Survives Dismissal and Death

The Energizer Bunny has nothing on the whistleblower claim of Robert Cunningham. Here’s what’s happened since Robert files his qui tam action against Millennium Labs back in 2009: the government declined to intervene; seven...more

ANDA Update - Volume 2, Number 2

180-Day Notice Period for Biosimilar Approval Is Always Mandatory and Enforceable by Injunction - Amgen Inc., v. Apotex Inc., (Fed. Cir. July 5, 2016) - A year after analyzing the patent dance and notice...more

Middle District of Louisiana Gets it Wrong: A Different Product is not an “Alternative Design”

Over the Fourth of July weekend, we in the Philadelphia area learned that 120 of the “new, state-of-the-art” trains in our regional commuter rail system were being pulled out of service. Someone noticed that the trains were...more

First Circuit Affirms Dismissal For CVS Caremark Under Public Disclosure Bar

The FCA’s public disclosure bar precludes liability when a relator’s allegations have been publicly disclosed in a list of statutorily enumerated sources. Last week, the First Circuit added to the growing jurisprudence both...more

Open Parking, LLC v. Parkme, Inc. (W.D. Penn. 2016)

Every day, millions of people are subjected to a frustrating experience -- finding a place to park their automobiles. Whether at the train station, the sports stadium, a festival, or a popular restaurant, circulating through...more

Coffelt v. NVIDIA Corp. (C.D. Cal. 2016) - Mathematical Algorithm Found to be Unpatentable

On June 21, 2016, the U.S. District Court for the Central District of California issued an order granting a motion to dismiss pursuant to Rule 12(b)(6) for lack of patentable subject matter under 35 U.S.C. § 101. Defendants...more

District Court Denies Request to Stay Discovery Pending Motion to Dismiss Based on Patent-Ineligible Subject Matter

J. Crew filed a motion to dismiss the plaintiffs' claims for patent infringement pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that the patents-in-suit are drawn to patent-ineligible subject matter and...more

District Court Applies Mayo To Treatment Claims But Denies Motion To Dismiss BMS Keytruda Litigation

The U.S. District Court for the District of Delaware accepted Merck’s arguments that method of treatment patents asserted by BMS against its Keytruda product “touch[] upon a natural phenomenon” such that they should be...more

Structuring a Settlement After Asserting Class Members Did Not Suffer Any Concrete Injury

Frequently, a class action complaint will set forth an elaborate theory of why the defendant’s actions were negligent or wrongful, but fall short when trying to identify how that conduct has harmed the class members. This...more

Report And Recommendation Regarding Motion To Dismiss Is Denied In Part And Granted In Part

Fallon, M. J. Report and recommendation recommending that defendants’ motion to dismiss for lack of personal jurisdiction and failure to state a claim be denied in part and granted in part. The disputed technology in...more

Chancery Analyzes Limits of 'Reasonable Conceivability'

In 2011, the Delaware Supreme Court in Central Mortgage v. Morgan Stanley Mortgage Capital Holdings, 27 A.3d 531, 537 (Del. 2011), unequivocally stated that the "pleading standard in Delaware to survive a motion to dismiss is...more

Don’t Get On the Wrong Side of Taylor Swift in a Copyright Case!

Taylor Swift has been in the news a lot over the last year or so. She is phenomenally successful. Her hit album “1989” concert tour was the highest grossing tour in the world in 2015 (over $250 million) and the highest...more

Court Of Chancery Explains Jurisdiction For Veil-Piercing

This is an interesting decision for its discussion on what must be pled to obtain Chancery jurisdiction in a claim seeking to pierce the corporate veil. It is not enough to just allege the entity was used to defraud. Rather,...more

Blue Diamond and WhiteWave Win Dismissal of Injunctive Relief Claim for Almond Milk Products

A recent decision from the Southern District of New York demonstrates the challenges consumers face in seeking injunctive relief on behalf of a class. On October 21, 2015, in Albert et al. v. Blue Diamond Growers, et al.,...more

Taking Down the Flagg: Fifth Circuit Remands Med Mal & Device Case for Lack of Diversity Despite Uncompleted Administrative Review...

A divided panel (2-1) of the U.S. Circuit Court of Appeals for the Fifth Circuit recently held that failure to exhaust a state law pre-suit medical panel review process did not subject the plaintiff’s claims against the...more

Another Cybersecurity Wake-Up Call for Business

On August 24, 2015, the U.S. Court of Appeals for the Third Circuit released its long-awaited ruling in Federal Trade Commission v. Wyndham Hotels, affirming the FTC's enforcement powers in the cybersecurity sphere. The...more

The Big Three: The 9th Circuit Joins The 6th Circuit and 7th Circuit in Holding That Sanctions For Bad-Faith Litigation Tactics...

In Law v. Wells Fargo Bank, N.A. (2015 S.O.S. 13–56099 – filed August 27, 2015), the Ninth Circuit joined the shortlist of Circuit Courts to hold that sanctions for bad-faith litigation tactics under 28 U.S.C. section 1927...more

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