Archives: Other Court Decisions

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Third Circuit Strikes Delaware Constitutional Requirement of Political Balance in Judicial Appointments to State Courts

A recent decision by the U.S. Court of Appeals for the Third Circuit in Adams v. Governor of Delaware, upheld a prior ruling which found unconstitutional a provision in the Delaware State Constitution that mandates a balance between Republicans and Democrats on the state bench in connection with the appointment of judges by the Governor.  … Continue Reading

Court Dismisses Suit Against Firearms Dealer Based on Immunity Statute

The Delaware Superior Court recently dismissed a claim against Cabela’s in connection with the sale at their Delaware location of a firearm based on a Delaware statute that bars civil liability for damages sought against the seller of firearms when the seller complied with all applicable statutes and regulations. In Summers v. Cabela’s Wholesale, Inc., … Continue Reading

Second Amendment Legal Advocacy Award

News from the Department of Self-Promotion: Recently I was awarded the 2019 Chief Justice William Killen Award for Second Amendment Legal Advocacy in connection with my most recent successful legal challenge of certain state regulations. The award was presented on behalf of the Delaware State Sportsmen’s Association, which is an affiliate of the National Rifle Association, before a group … Continue Reading

Indemnification Claim Accrues When Demand for Indemnification is Rejected

A recent Delaware decision is noteworthy because of its clarification of when the statute of limitations begins to run in connection with the alleged breach of a contractual indemnification clause. The Superior Court ruled that an indemnification claim for environmental remediation liability accrued when the seller refused to indemnify the buyer–and not when the buyer discovered the contamination on which … Continue Reading

Delaware Gun Restrictions Held Unconstitutional

This post was written by Eckert Seamans attorney Jamie Inferrera. A Delaware court recently issued a decision reaffirming an individual’s right to keep and bear arms outside of the home. In Delaware State Sportsmen’s Association and the Bridgeville Rifle and Pistol Club v. Delaware Department of Natural Resources and Environmental Control and Delaware Department of Agriculture, … Continue Reading

Delaware Choice-of-Law Provision Upheld

Delaware case law is replete with decisions upholding provisions in contracts that choose Delaware as the governing law for any disputes related to an agreement. A recent Delaware decision adds to the large body of Delaware jurisprudence on this topic. See, e.g., selected decisions on choice-of-law enforceability from the Delaware Supreme Court and Delaware Court of Chancery, … Continue Reading

Supreme Court Clarifies Requirements for Whistleblower Protection

The U.S. Supreme Court’s recent decision in Digital Realty Trust v. Somers, explained that in order for a whistleblower to be protected from retaliation, in some circumstances, the employee must complain directly to the SEC. I provide a summary of the decision in my latest article for the magazine of the National Association of Corporate … Continue Reading

Collection of Cases on Earn Out Disputes

A recent article on The Harvard Law School Corporate Governance Blog collected decisions, mostly based on Delaware law, that address Earn Out disputes, which generally involve agreements for the sale of a company that allow for post-closing payments subject to various milestones or revenue targets being satisfied. Commonly, the buyer of the company is required to use a … Continue Reading

Does BJR Apply to Corporate Officers?

A recent opinion noted an issue that deserves further analysis; namely: are corporate officers protected by the business judgment rule (BJR)? In Palmer v. Reali, Civ. No. 15-994-SLR (D.Del. Sept. 29, 2016), the U.S. District Court for the District of Delaware observed in the context of denying a Rule 12(b)(6) motion that no cases were cited … Continue Reading

What Data Given to Experts is Discoverable

This post was prepared by an associate in the Delaware office of Eckert Seamans. The focus of this blog is key Delaware corporate and commercial litigation decisions. That includes the Complex Commercial Litigation Division of the Superior Court.  The rules and procedures in that court are not always the same as those in the Court of … Continue Reading

Chancery and The Wall Street Journal

The Delaware Court of Chancery was mentioned in an editorial on the opinion page of The Wall Street Journal today in connection with a decision by Judge Posner of the U.S. Court of Appeals for the 7th Circuit in which he rejected a “disclosure only” settlement. In re Walgreen Co. Stockholder Litigation, No. 15-3799, opinion … Continue Reading

Firm Disqualified Based on Representation of Two Adverse Subsidiaries

In my latest ethics column for The Bencher, the national publication of the American Inns of Court, I highlighted a recent decision by a federal district court in which a law firm was disqualified based on its representation of two adverse subsidiaries of a parent company. The court’s useful application of Rule 1.7 and Rule 1.9 should be … Continue Reading

Large Defamation Damage Award Upheld Against Hewlett-Packard

The opinion in Professional Investigating & Consulting Agency, Inc. v. Hewlett-Packard Co., C.A. No. N12C-06-196 MMJ CCLD (Del. Super. Mar. 23, 2015), applies the Delaware law of defamation in the context of a claim by one business vendor against a large iconic company. The fascinating and scholarly opinion uses the word “humiliation” in the context … Continue Reading

Third Circuit Binds Non-Signatory to Forum Selection Clause

The Third Circuit, applying Delaware law in Carlyle Investment Management LLC v. Moonmouth Company SA, No. 13-3526 (3rd Cir. Feb. 25, 2015), recently bound a non-signatory to a forum selection clause found in a subscription agreement.  The court applied a three part test to determine whether the non-signatory should be bound by the forum selection … Continue Reading

Contract Interpretation Under PA Law

A helpful review of contract interpretation principles under Pennsylvania law was provided in an opinion by the U.S. District Court for the Eastern District of Pennsylvania, styled Artesian Water Company v. Chester Water Authority (E.D. Pa. Sept. 30, 2014). We represented Chester Water Authority in this matter. A prior decision in the same case, also … Continue Reading

U.S. Supreme Court Declines to Hear Appeal of Chancery Arbitration Program

As previously reported on these pages, the U.S. Court of Appeals for the Third Circuit found that a confidential arbitration program sponsored by the Court of Chancery for major business disputes ran afoul of the U.S. Constitution. The U.S. Supreme Court on March 24 declined to accept an appeal of that decision. That leaves the … Continue Reading

Advance Waiver of Future Conflicts Upheld by Federal Court

For my regular ethics column for the current issue of The Bencher, the national publication of the American Inns of Court, I wrote an article about a recent federal court decision that upheld the enforceability of a waiver, in advance, of future conflicts, and discussed the prerequisites for the validity of such a waiver.… Continue Reading

Third Circuit Court of Appeals Certifies Question to Delaware Supreme Court

Doe v. Wilmington Housing Authority, No. 12-3433 (3rd. Cir., July 18, 2013) In essence: This recent decision of the U.S. Court of Appeals for the Third Circuit is somewhat off topic for this blog, but the issue it addresses should be of universal interest because it deals with the natural right of self defense that each person is … Continue Reading

U.S. Supreme Court Court’s Decision In Criminal Case Has Implications For Directors And Officers

This post comes from Frances Goins of Ulmer & Berne in Cleveland.  Frances is the Chair of the ABA Business Law Section’s Subcommittee on Developments in D&O Liability. On June 16, 2013, the U.S. Supreme Court handed down its decision in Salinas v. Texas HERE which resulted from a criminal prosecution in which the defendant, who … Continue Reading

Delaware Holding Company Recognized for Jurisdictional Purposes

Johnson v. Smithkline Beecham Corp., 2013 U.S. App. LEXIS 11501 (3d Cir. June 7, 2013). Issue Addressed: For purposes of diversity jurisdiction, should a holding company’s citizenship be defined by the activities of its limited liability company (LLC) subsidiary given that a holding company’s primary activity is to own and manage, not to operate its assets. … Continue Reading

U.S. Supreme Court Addresses Discharge of Judgment for Breach of Fiduciary Duty

Bullock v. BankChampaign, N.A., No. 11-1518, 2013 U.S. LEXIS 3521 (U.S. May 13, 2013) Issue Addressed: This U.S. Supreme Court opinion considered whether a director found liable for a breach of fiduciary duty could discharge his debts related to that breach in Bankruptcy Court pursuant to 11 U.S.C. § 523(a)(4) of the Bankruptcy Code. The … Continue Reading
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