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Delaware
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September 23, 2024
3rd Circ. Vexed By Time-Tracking Role In $22M Wage Case
The Third Circuit contemplated on Monday whether a Pennsylvania battery manufacturer shorted workers $22 million for time they spent putting on and taking off protective gear, with one judge questioning the employer's stance that it was the workers' responsibility to track their donning and doffing time.
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September 23, 2024
Davis Polk Vows Ex-Clerk Won't Touch Crypto Merger Suit
Local counsel for Galaxy Digital Holdings Inc. has told a Delaware vice chancellor that Davis Polk & Wardwell LLP will ensure that an incoming associate who clerked for the state's Supreme Court won't share information with attorneys defending the digital assets company in a merger suit that the state's highest court revived in May.
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September 20, 2024
3rd Circ. CFPB Ruling Threatens Securitization, Justices Told
Two major trade groups for the securities industry have urged the U.S. Supreme Court to review a Third Circuit decision allowing the Consumer Financial Protection Bureau to exercise enforcement authority over a collection of student loan securitization trusts, slamming the ruling as wrong and dangerous.
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September 20, 2024
Alnylam Seeks To End Inventorship Suit Tied To COVID Vax
Alnylam Pharmaceuticals, which alleges that COVID-19 vaccines made by Pfizer and Moderna infringe its patents, has moved in Delaware federal court to dismiss a suit by former collaborator Acuitas Therapeutics Inc. seeking to have its scientists added as inventors on the patents.
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September 20, 2024
3rd Circ. Rejects 'Close' Case For Preemption In Fosamax MDL
A U.S. Food and Drug Administration letter denying changes to the label of Merck's osteoporosis drug Fosamax does not count as a final agency action triggering federal preemption of state law "failure to warn" claims, the Third Circuit ruled Friday in a precedential decision.
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September 20, 2024
Getting Around ITC Was 'Sneaky,' Judge Tells Caterpillar
A Delaware court has held that Caterpillar owes about $19.5 million in a patent case, citing in part the company's "sneaky" decision to domesticate manufacturing after a setback in a related infringement case at the U.S. International Trade Commission, while also finding that Caterpillar is subject to a rare injunction blocking the sale of some of its road construction machines.
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September 20, 2024
Del. Justices Uphold Toss Of AmerisourceBergen Syringe Suit
Delaware's Supreme Court upheld with little comment Friday a lower court dismissal of a nearly 5-year-old shareholder derivative suit accusing AmerisourceBergen Corp. directors of failing to investigate and stop illegal repackaging of cancer drugs.
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September 20, 2024
Northwestern Scores $6.6M Verdict On 'Cobot' Patents
A Delaware federal jury has awarded $6.6 million to Northwestern University after finding that Universal Robots infringed claims in three patents on collaborative robot, or "cobot," systems.
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September 20, 2024
US Chamber Warns Del. Justices On TC Energy Case Fallout
The U.S. Chamber of Commerce warned Delaware's Supreme Court Friday of "detrimental and expensive consequences" from an unprecedented, $199 million damages ruling against TransCanada Corp. last year for aiding seller fiduciary breaches in its $13 billion acquisition of Columbia Pipeline Corp.
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September 20, 2024
Doctor Can't Secure Disability Coverage, 3rd Circ. Affirms
An ophthalmologist cannot secure total-disability benefits from his occupational disability insurer after he was diagnosed with a nerve condition preventing him from performing surgeries, the Third Circuit ruled, noting he still maintained his practice even after he stopped performing the surgeries.
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September 20, 2024
Silvergate Wants Activist Investor's Board Seat Play Blocked
The parent company of Silvergate Bank, a defunct bank that catered to the cryptocurrency industry, has asked the judge in its Delaware bankruptcy case to help head off what it described as an activist investor's effort to score a seat on the debtor's board so he can try to secure a payout for shareholders who are set to receive nothing under a Chapter 11 plan.
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September 19, 2024
Feds Can't Order $31M To Refill Class Funds, 3rd Circ. Told
A New Jersey man convicted for stealing $40 million from settlements in stockholder class actions told a Third Circuit panel Thursday the multimillion-dollar restitution ordered at his sentencing is unlawful and should be vacated, arguing that the settlements weren't harmed.
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September 19, 2024
Chancery Fast-Tracks Suit Over Renewable Energy Co. Buyout
Delaware's Court of Chancery on Thursday expedited a lawsuit accusing a Repsol SA subsidiary of breaching an agreement requiring it to buy out the remaining shares in a Chicago-based renewable energy venture the Repsol unit co-owns.
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September 19, 2024
Newsmax Appeals Quash Of Smartmatic Atty Subpoenas
Newsmax Media Inc. is appealing a Florida judge's decision to quash its attempt to subpoena a slew of criminal defense attorneys — representing Smartmatic USA Corp. executives in a criminal case over a Philippines elections contract — in Smartmatic's defamation suit over Newsmax reports tying the voting tech company to alleged conspiracies to steal the 2020 U.S. presidential election.
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September 19, 2024
Norwich Asks Justices To Allow Sale Of Generic Diarrhea Drug
A New York drugmaker has told the U.S. Supreme Court that the courts have gone too far in preventing the release of a generic version of a blockbuster diarrhea drug, after a lower court found there was a way of using the drug that would infringe certain patents.
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September 19, 2024
Puerto Rico, Navient Ink $7.7M Student Loan Forgiveness Deal
Navient Corp. has reached an agreement with Puerto Rico's attorney general to forgive at least $7.7 million in private student loans after being accused of past predatory lending to student borrowers and pervasive loan servicing failures.
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September 19, 2024
Tupperware Gears Up For Lender Fight Over Ch. 11 Plans
Iconic food storage brand Tupperware received a Delaware bankruptcy judge's approval Thursday to keep its bank account systems operating as it prepares to fight off objections to most of its first-day motions next week from a group of secured lenders looking to dismiss its Chapter 11 bankruptcy and foreclose on its assets.
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September 19, 2024
Amazon, Bezos Deny Blue Origin Deal Challenges In Del.
An Amazon.com stockholder suit seeking damages from the e-commerce giant for purportedly conflicted dealing with company founder Jeff Bezos' Blue Origin space launch business can't get off the ground in Delaware's Court of Chancery, attorneys for the Amazon parties argued in a new brief filed late Wednesday.
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September 19, 2024
New NJ Senator Seeks Postelection Vote On 3rd Circ. Nominee
New Jersey's new U.S. senator, freshly sworn-in Democrat George Helmy, hopes the Senate will vote after the election on the long-stalled nomination of Adeel Mangi to the Third Circuit, which includes his state.
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September 19, 2024
Delaware Powerhouse: Bernstein Litowitz
Bernstein Litowitz Berger & Grossmann LLP continues to build a reputation for success in Delaware's Chancery Court, with bona fides that include serving as lead trial counsel in a shareholder action that led to Elon Musk's massive compensation plan at Tesla being rescinded, landing the firm on Law360's 2024 list of Delaware Powerhouses.
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September 19, 2024
3rd Circ. Curious When Workplace Acts Become 'Concerted'
Third Circuit judges pressed the National Labor Relations Board on Thursday to specify what elevated a Pennsylvania plastic company employee's complaints about working during COVID-19 closures into protected, "concerted" activities, if there was little evidence that other employees joined him in his concerns.
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September 18, 2024
DuPont Heirs Beat ERISA Suit Over 1947 Trust At 3rd Circ.
The Third Circuit reversed a decision Wednesday and found DuPont heirs aren't liable for Employee Retirement Income Security Act violations in a dispute over who's to blame for underfunding a now-insolvent trust that was created by their grandmother in 1947 and paid the heirs and their workers retirement benefits.
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September 18, 2024
FTX Auditor Prager Metis Settles SEC Charges For Negligence
The former auditor of Sam Bankman-Fried's defunct cryptocurrency exchange FTX agreed Tuesday to pay $1.95 million to resolve allegations by the U.S. Securities and Exchange Commission of misconduct in FTX audits and, in a separate case, violations of auditor independence rules.
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September 18, 2024
$24.5M Fee Sought In Del. For $125M Discovery Suit Deal
Class attorneys who secured a proposed $125 million settlement in a Delaware Court of Chancery suit filed by former Discovery Inc. stockholders challenging the company's $43 billion merger with AT&T in April 2022 proposed a $24.5 million fee for their efforts Wednesday.
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September 18, 2024
3rd Circ. Digs Into NLRB's Power To Punish Starbucks
A Third Circuit panel on Wednesday struggled to find agreement between Starbucks Corp. and the National Labor Relations Board on the scope of the agency's power to penalize companies for violating employees' rights, as it considered the coffee chain's challenge to the agency's penalties over its firing of two unionizing workers.
Expert Analysis
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Opinion
Climate Change Shouldn't Be Litigated Under State Laws
The U.S. Supreme Court should reverse the Hawaii Supreme Court's October decision in Honolulu v. Sunoco that Hawaii could apply state law to emissions generated outside the state, because it would lead to a barrage of cases seeking to resolve a worldwide problem according to 50 different variations of state law, says Andrew Ketterer at Ketterer & Ketterer.
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Del. Rulings Make Clear That 'Arbitrator' Isn't A Magic Word
Recent decisions by the Delaware Chancery Court clarify that calling a process an "expert determination" or "arbitration" in a purchase agreement is not sufficient to define it as such, so practitioners must consider how to structure dispute resolution provisions to achieve their clients’ desired result, say attorneys at Troutman Pepper.
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Del. Ruling Highlights M&A Deal Adviser Conflict Disclosures
The Delaware Supreme Court recently reversed the Court of Chancery's dismissal of challenges to Nordic Capital's acquisition of Inovalon, demonstrating the importance of full disclosure of financial adviser conflicts when a going-private merger seeks business judgment rule review, say attorneys at Debevoise.
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E-Discovery Quarterly: Recent Rulings On Text Message Data
Electronically stored information on cellphones, and in particular text messages, can present unique litigation challenges, and recent court decisions demonstrate that counsel must carefully balance what data should be preserved, collected, reviewed and produced, say attorneys at Sidley.
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Series
Swimming Makes Me A Better Lawyer
Years of participation in swimming events, especially in the open water, have proven to be ideal preparation for appellate arguments in court — just as you must put your trust in the ocean when competing in a swim event, you must do the same with the judicial process, says John Kulewicz at Vorys.
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How Courts Are Interpreting Fed. Circ. IPR Estoppel Ruling
In the year since the Federal Circuit’s Ironburg ruling, which clarified the scope of inter partes and post-grant review estoppel, district court decisions show that application of IPR or PGR estoppel may become a resource-intensive inquiry, say Whitney Meier Howard and Michelle Lavrichenko at Venable.
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Patent Damages Jury Verdicts Aren't Always End Of The Story
Recent outcomes demonstrate that patent damages jury verdicts are often challenged and are overturned approximately one-third of the time, and successful verdict challenges typically occur at the appellate level and concern patent validity and infringement, say James Donohue and Marie Sanyal at Charles River.
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Notable Q1 Updates In Insurance Class Actions
Mark Johnson and Mathew Drocton at BakerHostetler discuss notable insurance class action decisions from the first quarter of the year ranging from salvage vehicle titling to rate discrimination based on premium-setting software.
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Why High Court May Have Rejected IP Obviousness Appeal
Attorneys at Womble Bond analyze possible reasons the U.S. Supreme Court rejected Vanda Pharmaceuticals' request to review the Federal Circuit’s reasonable expectation of success standard for determining obviousness, including that the court was unpersuaded by the company's argument that Amgen v. Sanofi places a bind on drug developers.
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Opinion
Viral Deepfakes Of Taylor Swift Highlight Need For Regulation
As the nation grapples with addressing risk from artificial intelligence use, the recent circulation of AI-generated pornographic images of Taylor Swift on the social platform X highlights the need for federal legislation to protect nonconsenting subjects of deepfake pornography, say Nicole Brenner and Susie Ruiz-Lichter at Squire Patton.
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The Fed. Circ. In April: Hurdles Remain For Generics
The Federal Circuit’s recent Salix v. Norwich ruling — where Salix's brand-name drug's patents were invalidated — is a reminder to patent practitioners that invalidating a competitor's patents may not guarantee abbreviated new drug application approval, say Sean Murray and Jeremiah Helm at Knobbe Martens.
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Don't Use The Same Template For Every Client Alert
As the old marketing adage goes, consistency is key, but law firm style guides need consistency that contemplates variety when it comes to client alert formats, allowing attorneys to tailor alerts to best fit the audience and subject matter, says Jessica Kaplan at Legally Penned.
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Series
Walking With My Dog Makes Me A Better Lawyer
Thanks to my dog Birdie, I've learned that carving out an activity different from the practice of law — like daily outdoor walks that allow you to interact with new people — can contribute to professional success by boosting creativity and mental acuity, as well as expanding your social network, says Sarah Petrie at the Massachusetts Attorney General’s Office.
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Think Like A Lawyer: Follow The Iron Rule Of Trial Logic
Many diligent and eager attorneys include every good fact, point and rule in their trial narratives — spurred by the gnawing fear they’ll be second-guessed for leaving something out — but this approach ignores a fundamental principle of successful trial lawyering, says Luke Andrews at Poole Huffman.
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Court Clerk Error Is No Excuse For A Missed Deadline
Two recent Virginia Court of Appeals decisions in which clerical errors led to untimely filings illustrate that court clerks can be wrong about filing deadlines or the date an order was entered, underscoring the importance of doing one's own research on filing requirements, says Juli Porto at Blankingship & Keith.