News & Analysis as of

The Fate of Delaware "Fee-Shifting" Bylaws

A topic of considerable controversy within the corporate community over the past two months has been the possibility of adopting a "fee-shifting" provision in the bylaws of Delaware corporations. Depending on how it is...more

Adoption of Fee-Shifting Bylaws by Pennsylvania Corporations

Recently, there has been some unusual excitement in the corporate bar in Delaware after the Supreme Court of Delaware held that a nonstock corporation could adopt a bylaw requiring a losing plaintiff in a lawsuit involving...more

Supreme Court Update: Four Important Decisions for IP

In the recent cases OCTANE FITNESS, LLC v. ICON HEALTH & FITNESS, INC. and HIGHMARK INC. v. ALLCARE HEALTH MANAGEMENT SYSTEM, INC., the U.S. Supreme Court empowered district court judges to award attorney fees to prevailing...more

Using Corporate Bylaws and Charters to Set the Rules for Shareholder Litigation

Recent court decisions, including the Delaware Supreme Court’s opinion earlier this month in ATP Tour, Inc. v. Deutscher Tennis Bund, have focused new attention on the use of corporate bylaws and charters to establish the...more

The Fluid State of Delaware Fee-Shifting Bylaws

On May 8, 2014, the Delaware Supreme Court held in ATP Tour, Inc. v. Deutscher Tennis Bund that a bylaw provision that shifts "all fees, costs and expenses of every kind and description (including, but not limited to...more

Legal Alert: UPDATE: The Hare Loses Steam – Patent Litigation Reform Law Unlikely This Year

Efforts by the U.S. Senate to pass an alternative to the Innovation Act, which aims to reform abusive patent litigation, have stalled. Sen. Patrick Leahy, who is leading the effort, has announced that his committee is tabling...more

"Fee-Shifting Bylaws: The Delaware Supreme Court Decision in ATP Tour, Its Aftermath and the Potential Delaware Legislative...

On May 8, 2014, the Delaware Supreme Court issued an opinion in ATP Tour, Inc. v. Deutscher Tennis Bund (German Tennis Federation), No. 534, 2013 (Del. May 8, 2014), holding that fee-shifting provisions in a Delaware...more

Delaware Supreme Court upholds fee-shifting provision in company bylaw, signifying a future sea change in corporate litigation

The Delaware Supreme Court, sitting en banc, has held that a Delaware corporate bylaw that requires a losing claimant to pay the legal fees and expenses of the defendants is not invalid per se, and if otherwise enforceable...more

Delaware Court Enforces “Loser Pays” Bylaw, Opens the Door for D&O Insurers to Better Assess and Control Shareholder Litigation...

The Delaware Supreme Court held that a corporation’s fee-shifting bylaw is enforceable as long as the bylaw is not adopted for an inequitable purpose. A first of its kind, this ruling seems poised to change dramatically the...more

Paradigm Shift? The Delaware Supreme Court Allows Bylaw That Shifts Attorneys’ Fees to Loser in Fiduciary Duty Litigation

Under the prevailing “American rule,” shareholders and their counsel face little financial risk when they assert claims against directors and officers for breaches of fiduciary duty, typically following the announcement of a...more

Supreme Court Establishes "Totality of the Circumstances" Framework for Determining Whether Attorney's Fees Should Be Shifted in...

Also Holds That Review of Such Determinations Is for Abuse of Discretion - In a pair of companion cases decided on April 29, 2014, the U.S. Supreme Court provided key guidance on several significant issues concerning...more

Two Recent Supreme Court Decisions On Awarding Attorney Fees May Impact ‘Patent Trolls’ Debate

Two decisions of the U.S. Supreme Court on April 29, 2014 may have an impact on the “patent trolls” debate by changing the rules relating to the award of attorney fees to a winning party in litigation relating to patent...more

Oral Arguments in the Supreme Court Octane Fitness, LLC v. ICON Health & Fitness, Inc. Case

On February 26, 2014, the Supreme Court heard oral arguments in two cases dealing with the attorney fee-shifting provision of 35 U.S.C. § 285. In the first case, Octane Fitness, LLC v. ICON Health & Fitness, Inc. (Supreme...more

The Offer of Judgment: A Strategy to Oppose Claims for Attorneys’ Fees in Environmental Fee-Shifting Cases

The Third Circuit Court of Appeals recently held that an offer of judgment in response to a claim for attorneys’ fees in a citizen suit under the Resource Conservation and Recovery Act (RCRA) is valid. Interfaith Community...more

Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate Fund, No. 437, 2012 (Del. May 9, 2013)

In this en banc opinion, the Delaware Supreme Court affirmed the Court of Chancery’s reformation of three real estate joint venture agreements, based on unilateral mistake by one joint venture party and knowing silence by the...more

Another California Court Awards Attorneys' Fees in Bad-Faith Trade Secret and Patent Inventorship Lawsuit

Earlier this month, the U.S. District Court for the Southern District of California awarded more than $11 million in attorneys' fees and costs to three trade secret defendants, finding that plaintiffs who had raised a claim...more

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