Opinions Digested in Delaware Law Weekly for the Issue of
CIVIL PRACTICE Dismissal l Patent Infringement Suits l First-filed Rule l New Jersey l Delaware Abbott Laboratories v. Johnson & Johnson, Inc. DeFAX Case No. D63075 (D.Del. Nov. 28, 2007).
Plaintiffs were not entitled to pursue patent infringement litigation in federal district court in Delaware in light of a covenant not to sue pertaining to several patents and in light of the so-called “first-filed” rule. Motions decided.
BUSINESS LAW Indemnification l Advancement l LLC l Corporation l Conversion Bernstein v. TractManager, Inc. DeFAX Case No. D63069 (Del. Ch. Nov. 20, 2007).
Plaintiff was not entitled to advancement of litigation expenses pursuant to a corporation’s bylaws where the claims at issue were based on actions taken before plaintiff became a director of the corporation, and where the operating agreement of the predecessor LLC did not provide for mandatory advancement for its managers. Cross motions for summary judgment decided.
CIVIL PRACTICE Attorney Fees l American Rule l Common Fund Exception l Inequitable Award Korn v. New Castle Cty. DeFAX Case No. D63072 (Del. Ch. Oct. 3, 2007).
Although an award of attorney fees in this taxpayer lawsuit was warranted under the common fund exception to the American Rule, a fee award in the amount of 33 percent of the common benefit was inequitable under the circumstances. Motion for attorney fees granted.
REAL PROPERTY Covenants l Deed l Homeowners Association Assessment l Validity Bradley v. Old Landing Ass’n DeFAX Case No. D63071 (Del. Ch. Nov. 7, 2007).
Petitioners were entitled to summary judgment in this dispute over their failure to pay certain assessments because the restrictive covenants attached to their deed did not authorize such assessments and because the homeowners association’s certificate of incorporation did not operate as an amendment to the restrictive covenants. Master’s report issued.
REAL PROPERTY Real Estate Transactions l Breach of Agreement l Interpretation l Extrinsic Evidence West Willow-Bay Court, LLC v. Robino-Bay Court Plaza, LLC, DeFAX Case No. D63070 (Del. Ch. Nov. 2, 2007).
Because the parties’ agreement clearly and unambiguously required defendant to obtain third party consent for a proposed shopping center project, the Court of Chancery refused to consider extrinsic evidence on the issue. Declaratory judgment for plaintiff.
ENVIRONMENTAL LAW State Laws l Coastal Zone Act l Bulk Transfer Facility l Nonconforming Use Delaware Dept. of Natural Resources & Environmental Control v. Vane Line Bunkering, Inc. DeFAX Case No. D63073 (Del. Super. Nov. 19, 2007).
The Coastal Zone Industrial Control Board erred in concluding that a company’s proposed vessel-to-vessel oil lightering facility in the coastal zone was a nonconforming use that was not prohibited under the Coastal Zone Act. Reversed.
WORKERS’ COMPENSATION Disability l Total Disability l Closed Period l Reasonable Job Search Thompson v. United Agri Products, Inc. DeFAX Case No. D63068 (IAB Sept. 12, 2007).
Claimant was not entitled to total disability benefits for a closed period after his termination from employment because he failed to prove that he performed a reasonable job search that failed due to his work-related injury. Petition to determine additional compensation due granted only as to partial disability benefits.
WORKERS’ COMPENSATION Impairment l Permanent Impairment l Cervical and Lumbar Spine l Medical Expenses McCulley v. La Fontana Restaurant DeFAX Case No. D63074 (IAB Sept. 7, 2007).
Given the persuasive testimony offered by claimant’s medical experts, claimant was entitled to an 11 percent permanent impairment rating for her lumbar spine, a 7 percent permanent impairment rating for her cervical spine and the payment of medical expenses. Petition to determine additional compensation due granted.
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