Under Delaware law, the decision to commence litigation on behalf of a corporation is, of course, a fundamental exercise of business judgment, which decision rests with the Board of Directors. A shareholder, therefore, cannot bring a derivative action without pleading that a demand on the corporation to do so had been made, or that
Is Customer Information a Trade Secret? Not So Fast!
Under what circumstances do customer information and business operations constitute “trade secrets” that may be enjoined from use by a former employee ? A recent decision by Justice Elizabeth H. Emerson on this issue serves as a stark reminder that a preliminary injunction requires “clear and convincing” proof that the information is truly a secret.
To ADR or Not to ADR? Two New Amendments to the Commercial Division Rules Require Parties to Answer the Question
Two recent amendments to the Commercial Division Rules, designed to encourage alternative dispute resolution, will go into effect on January 1, 2018.
The amendment to Rule 10 requires counsel to certify that they have discussed with their clients the availability of alternative dispute resolution options in their case. Specifically, counsel will be required to submit
Jurisdictional Discovery: When and Why It’s Available
Personal jurisdiction analysis is often the enemy of 1L’s tackling that doozy of a CivPro exam. Outside of that 10-page fact pattern requiring consideration of Helicopteros Nacionales de Colombia, SA v. Hall, International Shoe Co. v. Washington, and World-Wide Volkswagen Corp. v. Woodson, this is normally a seamless endeavor for commercial litigators.
Has Rule 11-c Made Nonparties’ Yoke Easy and Burden Light When It Comes to e-Discovery?
As we have come to expect, the Commercial Division Advisory Council periodically makes recommendations to amend and/or supplement the Rules of the Commercial Division, many of which are eventually adopted following a solicitation process for public comment by the Office of Court Administration.
In 2015, as a host of new Commercial Division rules
Pleading Equitable vs. Contractual Indemnification
Can a claim for equitable or common-law indemnification co-exist with a claim for express or contractual indemnification?
In Live Invest, Inc. v. Morgan Justice Emerson says “no”, when the claim seeks to recover for the defendant’s wrongdoing (e.g., breach of contract) as opposed to simply trying to hold a defendant liable based on
Answer the Phone, Win a Trip to New York?
If you live in the Western Hemisphere, then you already know that New York courts may exercise personal jurisdiction over a nondomiciliary who transacts business in New York if the plaintiff’s claim arises from the transaction of such business. But what does it mean to transact business in New York? Much ink has been spilled
It May Look Like Documentary Evidence, But Is It Under CPLR 3211(a)(1)?
CPLR 3211(a)(1) allows a defendant to seek dismissal of a complaint when the defense is “founded upon documentary evidence.” “Documentary evidence”, however, is not defined by the CPLR – leaving many practitioners in the dark as to what qualifies as a sufficient “document” under this paragraph. Indeed, in a recent blog, we highlighted a
“Better Late Than Never” Not a Refrain for the Defaulting Defendant Lacking a Potentially Meritorious Defense
Statutorily imposed deadlines are not optional for commercial litigants; this much should be obvious. Notwithstanding, and despite numerous technological calendaring options available to commercial litigators, deadlines are blown in the Commercial Division, including the mother of all deadlines: the defendant’s time to answer or otherwise move against a complaint (see CPLR 3012). As
Check the Rules Part III
Visitors to this blog may recall our recent posts (here and here) concerning the individual practice rules of Manhattan Commercial Division Justice Bransten and Queens County Commercial Division Justices Gray and Livote. “Check the rules!”, was the cautionary theme of those posts.
But just how much of a stickler for compliance