The Delaware Supreme Court provided this week the latest iteration of Delaware law on the first-filed rule and whether a particular issue is covered by an arbitration clause. Over a vigorous dissent, Delaware’s high court affirmed a decision of the Delaware Court of Chancery that applied the first-filed rule to an arbitration proceeding that preceded the filing of a subsequent lawsuit. LG Electronics, Inc. v. InterDigital Communications, Inc., No. 475, 2014 (Del. Supr., April 14, 2015), also features a robust disagreement among the justices regarding whether the provisions of the parties’ agreements included a clear intent of the parties to submit the issues involved to arbitration.
The Chancery decision was highlighted on these pages here. Also notable is that the dissent, at 21 pages, was nearly as long as the majority opinion, which weighed in at 23 pages.
Also interesting as an aside, is the increasing percentage of Supreme Court opinions over the last year or so that feature dissents. A majority of the current members of the 5-person court were not on the court a year ago. The prior composition of the court, which previously had remained the same for about a decade or so, rarely included dissenting opinions. According to The Chancery Daily, the chronicle of record for Delaware corporate and commercial litigation, of the 21 opinions issued in 2015 so far by the Delaware Supreme Court, dissents were featured in six of them. Previously only about 1% of Delaware Supreme Court decisions included dissenting opinions. Draw your own conclusions.