Fee-Shifting

News & Analysis as of

Solak v. Sarowitz et al., C.A. No. 12299-CB (Del. Ch. Dec. 27, 2016) (Bouchard, C.)

In this opinion, the Court of Chancery held that Section 109(b) of the Delaware General Corporation Law (the “DGCL”) prohibits a bylaw shifting to a stockholder plaintiff the attorneys’ fees and other expenses incurred by the...more

Delaware Chancery Court Confirms the Invalidity of Fee-Shifting Bylaws for Stock Corporations

In Solak v. Sarowitz, C.A. No. 12299-CB (Del. Ch. Dec. 27, 2016), the Delaware Court of Chancery held that plaintiff stated a claim that a stock corporation’s fee-shifting bylaw was facially invalid under Section 109(b) of...more

Court Of Chancery Strikes Down New Fee-Shifting Bylaw

After the enactment of Section 109(b) of the Delaware General Corporation Law, one would have thought that fee-shifting bylaws were invalid. However, this decision deals with another attempt to shift fees, this time when a...more

Delaware Court Addresses Fee-Shifting Bylaw

In 2015, Section 115 was added to the Delaware General Corporation Law, or DGCL providing that Delaware corporations may adopt bylaws requiring that internal corporate claims be filed exclusively in Delaware. Section 109(b)...more

Intellectual Property Law - December 2016

Design Patents—Supreme Court Decides Samsung v. Apple - Why it matters: On December 6, 2016, the Supreme Court decided Samsung v. Apple, holding that, for purposes of a "total profits" damages award for infringement of a...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

Ninth Circuit Applies Octane Fitness’ Loosened Fee-Shifting Standard to Trademark Cases

Ninth Circuit joins growing trend in circuit courts, which has practical implications for trademark litigants on both sides. Two years have passed since the US Supreme Court added some teeth to the Patent Act’s...more

Copyright and Trademark Case Review: Who’s on First?, Virtual Lockers and Lanham Act Fee-Shifting

Copyright Opinions - Second Circuit Permits Distribution of Cloud-Based Samples, But Declines to Consider “Novel” Cloud Storage Infringement Issue: Smith v. Barnesandnoble.com, LLC, No. 15-3508 (2d Cir. October 6,...more

ISS Announces Rebranded Governance Rating System and New Factors

ISS has announced the adoption of QualityScore, a benchmark of corporate governance. QualityScore was previously known as QuickScore, and before that by the monikers “GRId” and “CGQ.” For US companies, the following is a...more

The 9th Circuit Injects Some “Octane” into the Lanham Act Attorneys’ Fee Provision

In the immortal words of the most recent Nobel Laureate in literature, “the times they are a changin.’” Section 35(a) of the Lanham Act provides that “[t]he court in exceptional cases may award reasonable attorney fees to...more

MoFo IP Newsletter - August 2016

Supreme Court Abolished Federal Circuit's Test for Willfulness - On June 13, 2016, in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. ___ (2016), the Supreme Court unanimously abrogated the Federal Circuit’s...more

Ambiguous Scope of 998 Offer Forfeits Potential Post-Offer Cost Recovery

In Yolanda Ignacio v. Marilynne Caracciolo (No. B266930), the California Court of Appeal for the Second District found that a settlement offer seeking to release a party from claims outside the scope of the litigation at...more

Kirtsaeng II: Fees in Copyright Cases Depend on Reasonableness of Litigation Position

Under 17 USC § 505, a “court may . . . award a reasonable attorney’s fee to the prevailing party.” However, when deciding whether to award attorneys’ fees under the Copyright Act’s fee-shifting provision, 17 USC § 505, the...more

Federal Circuit Review | July 2016

Obvious Combinations Do Not Need to Be Physically Combinable - In Allied Erecting and Dismantling Co., Inc. v. Genesis Attachments, LLC, Appeal No. 2015-1533, the Federal Circuit affirmed the PTAB’s invalidity finding...more

Advertising Law - July 2016

Ad Company's Geotargeting Locates a $1M Penalty - InMobi, a Singapore-based mobile advertising company, will pay almost $1 million in civil penalties and implement a comprehensive privacy program to settle charges that...more

Copyright and Trademark Case Review: In "Vogue," Burning Man, Building Plans and More

Copyright Opinions - Samples in Madonna's “Vogue” Too Trivial to Be Infringing: VMG Salsoul, LLC v. Ciccone, Nos. 13-57104, 14-55837 (9th Cir. June 2, 2016) - Graber, J. In a suit claiming infringement of both...more

Attorney Fee Awards In Unpaid Wages Cases – Court of Appeal Clarifies Who Is Entitled To Fees Under Statutory Fee Shifting...

On June 28, 2016, in Rogelio Ramos v. Manuel Garcia (“Ramos”) (Superior Court Case No. 37-2013-00037990-CU-OE-CTL), the Court of Appeal for the Fourth Appellate District reaffirmed that under Labor Code Section 218.5 an...more

Supreme Court Affirms Discretion to Award Fees in Copyright Suits, But Case Precedence Not Relevant

The Copyright Act states that the trial court “may…award” attorney’s fees to the prevailing party. Legal fees incurred by plaintiffs and defendants alike in copyright and other intellectual property cases can be staggering,...more

Blog: From Aeroflex to Trulia: A Seismic Shift

On January 22, 2016, Chancellor Bouchard rejected a proposed disclosure-only settlement inIn re Trulia, Inc. Stockholder Litigation, 129 A.3d 884 (Del. Ch. 2016), marking the culmination of what has been a seismic shift over...more

Is a Third Party Entitled to its E-Discovery and Attorney Costs for Responding to a Subpoena?

Although e-discovery has been part of complex commercial litigation for over a decade, there have been only a few federal appellate court rulings about e-discovery topics. On April 7, 2016, in In re Am. Nurses Ass’n, the...more

Practioners -- Time to Update Your Client Arbitration Agreements, Part II

Many attorneys have been using the same engagement agreements for decades designating standard commercial providers such as the American Arbitration Association to resolve client disputes. In recent years some have learned...more

Homeowners Who Purchase Directly from Homebuilders May Seek Recovery of Attorneys’ Fees on Claims for Breach of the Implied...

Three things have long been settled law in Arizona regarding residential construction: (1) a homebuilder owes a homeowner an implied warranty of workmanship and habitability with regard to the construction of the home; (2)...more

The Kirtsaeng Opinion: Supreme Court Guidance on Attorneys’ Fees Awards in Copyright Cases

Recently, in Kirtsaeng v. John Wiley & Sons, Inc., the U.S. Supreme Court provided substantial guidance in an unsettled area of law by holding that, when deciding whether to award attorneys’ fees under 17 U.S.C. §505, the...more

Kirtsaeng II: Fees in Copyright Cases Depends on Reasonableness of Litigation Position

In Depth - Under 17 USC § 505, a “court may … award a reasonable attorney’s fee to the prevailing party.” However, when deciding whether to award attorneys’ fees under the Copyright Act’s fee-shifting provision, 17 USC...more

Supreme Court Provides Guidance on Attorneys’ Fees in Copyright Infringement Actions

On June 16, 2016, the U.S. Supreme Court issued an opinion in Kirtsaeng v. John Wiley & Sons, Inc., to provide lower courts with guidance regarding the circumstances for awarding attorneys’ fees to a prevailing party in a...more

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