Delaware

Expert Analysis

• Opinion

  The Case For A Nonpolitical Federal Judiciary

  

  For the last 20 years, at the insistence of both parties, U.S. Supreme Court nominations have been fierce ideological battles — which is bad for the country and bad for the public's perception of the legitimacy of the court, say Judge Eric Moyé, Judge Craig Smith and Winston & Strawn partner Tom Melsheimer.

• Anthem-Cigna Merger Ruling Highlights Post-Deal Issues

  

  The Delaware Chancery Court's recent decision to halt the Anthem-Cigna merger on antitrust grounds is most notable for not holding Cigna liable for breaching its obligation to support the transaction, and underscores the vulnerability of merger-of-equals transactions to post-signing issues, say attorneys at Fried Frank.

• Overlooked Patent Cases: Lessons On Section 101 Motions

  

  As motions to dismiss based on patent eligibility under Section 101 are on the rise, recent, lesser known federal district court decisions offer several drafting insights for patent owners facing eligibility attacks at the pleadings stage, particularly in the high-tech space, say attorneys at Akin Gump.

• The Keys To A Better Privilege Logging Paradigm

  

  Current privilege logging practices to identify what information is being withheld from discovery often lead to costly disputes, so practitioners should adopt a system based on trust and good faith, similar to the presumptions embedded in the business judgment rule for corporate directors and officers, say Kevin Brady at Volkswagen and Charles Ragan and Ted Hiser at Redgrave.

• Chancery Ruling Offers Takeaways On Conflicts In M&A Sales

  

  The Delaware Court of Chancery's recent decision in Rudd v. Brown — a challenge to Outerwall's $1.6 billion sale to Apollo — provides valuable insight in the context of conflicts of interest and director and officer fiduciary duties during M&A sales processes completed amid threats of activist-driven proxy contests, says Sawyer Duncan at King & Spalding.

• Law Firm Hiring Considerations In A COVID-19 Economy

  

  Financially robust law firms are entering the recruiting market aggressively knowing that dislocations like the COVID-19 crisis present rare competitive opportunities, and firms that remain on the sidelines when it comes to strategic hiring will be especially vulnerable to having their best talent poached, says Brian Burlant at Major Lindsey.

• Comparing Recent State Data Breach Law Updates

  

  Public and private entities should revisit their incident response plans to ensure compliance with and understand the differences among heightened data breach notification requirements that five states and Washington, D.C., added or amended this year, says Jane Petoskey at Polsinelli.

• Streamlining Power Transmission Siting To Help Renewables

  

  It can take years and cost millions of dollars to secure state regulatory approval for electric transmission system upgrades needed to facilitate clean energy development, so it is important for states to create abbreviated siting processes for projects with limited anticipated impacts, says Andy Flavin at Troutman Pepper.

• Opinion

  Lawyers Must Act To Preserve Democracy This Election

  

  COVID-19 concerns and glaring gaps in registration threaten to dampen voter turnout in the 2020 election, so attorneys should take on the problem by leveraging their knowledge and resources in seven ways, says Laura Brill at Kendall Brill.

• How To Effectively Defend Witnesses In Remote Depositions

  

  When a witness is isolated from the defending lawyer during a remote deposition, carefully planning the logistics and building witness confidence are critical to avoiding damaging admissions, say Jessica Staiger at Archer Daniels and Alec Solotorovsky at Eimer Stahl.

• Chancery Ruling Highlights Fraud Claim Risk For PE Sellers

  

  The Delaware Chancery Court recently declined to dismiss fraud claims against private equity firm NGP Energy Capital in its sale of Agspring, reminding private equity sellers that they may be liable for a portfolio company's fraudulent representations, say attorneys at Fried Frank.

• Whether And How To Compel Remote Arbitration

  Excerpt from Practical Guidance

  

  As the pandemic delays in-person arbitration hearings, mediator and arbitrator Theodore Cheng provides arbitrators with a checklist to examine the rationale and authority for compelling parties to participate in remote hearings.

• Series

  AGs In A Pandemic: James Talks NY Response

  

  New York Attorney General Letitia James highlights her office's efforts to ease financial burdens for New York residents and businesses struggling during the pandemic by fighting fraud, policing employers, assisting with debt relief and more.

• The Unique Challenges Of Protecting A Law Firm Brand

  

  Recent law firm trademark disputes highlight how the tension between legal ethics rules and trademark law can make it difficult for firms to select brands that are distinctive and entitled to protection, say Kimberly Maynard and Tyler Maulsby at Frankfurt Kurnit.

• Opinion

  USPTO Abuse Of Discretionary IPR Denials Must Be Cabined

  

  The U.S. Patent and Trademark Office has exceeded its congressional mandate by considering its discretion to deny inter partes reviews absolute, but recent lawsuits by tech companies asking courts to limit agency discretion hold promise, says David Jones at the High Tech Inventors Alliance.