As a bid protest lawyer, one of the most frequent questions I hear from companies considering whether to pull the trigger and file a pre- or post-award bid protest is “Can we win?” My response – regardless of the meritorious nature of the protest grounds and the corresponding flaws in the Continue Reading
Delaware Bankruptcy Court Denies Creditors’ Committee Access to Privileged Documents
In a May 8, 2017 ruling, the Delaware Bankruptcy Court denied the official committee of unsecured creditors from accessing certain documents withheld from production based on the attorney-client privilege. Despite the purpose underlying the committee’s creation, the court distinguished the role of Continue Reading
Coal Plant Shutdown: Owners and Operators Need Vision – Part II
Owners and operators planning a plant shutdown benefit from developing a forward-looking "Vision" of their plant site. The Vision is a well-developed plan for the eventual reuse of the plant property that includes not only the process for shutdown, cleanup, and redevelopment but also the steps for Continue Reading
Shrewsbury v. Bank of N.Y. Mellon: Altering the Landscape of Foreclosure Actions in Delaware or Much Ado About Nothing?
J.M. Shrewsbury v. Bank of N.Y. Mellon, 2017 WL 1374746 (Del. Apr. 17, 2017) – The Supreme Court of Delaware, sitting en banc, issued a decision of interest to lenders seeking to foreclose on real property in the state of Delaware. In reversing the order of the trial court granting summary Continue Reading
Emerging Contaminants Raise Remediation Planning Issues
With regulators beginning to target emerging contaminants and revising relevant action levels, property owners and other potentially impacted parties would be wise to examine their remediation obligations now. The U.S. Geological Survey has defined emerging contaminants as “any synthetic or Continue Reading
Delaware Supreme Court Redefines Contractual Good-Faith Standard and Cautions Limited Partners that Their Obligations Under LPA Can Be Enlarged Without Their Consent
Brinckerhoff v. Enbridge Energy Company Inc., Del. Supr., No. 273, 2016 (Mar. 20, 2017; revised Mar. 28, 2017) is the fifth opinion issued by the Delaware courts relating to the joint venture between Enbridge, Inc. (Enbridge), and Enbridge Energy Partners, L.P. (EEP). Enbridge is the ultimate parent Continue Reading
Connecticut Appeals Court Adopts Continuous Trigger Theory; Recognizes the Unavailability of Insurance Rule without an Equitable Exception
On March 7, the Connecticut Appellate Court handed a victory to policyholders seeking insurance for long-tail liabilities. The court adopted both a continuous trigger for asbestos-related disease claims and an unavailability of insurance rule. R.T. Vanderbilt Co. v. Hartford Continue Reading
Coal Plant Shutdowns: The Tax Appeal Should Not Wait
Nothing is certain except death and taxes, unless you own a coal-fired power plant with a shutdown in its future, in which case – with apologies to Ben Franklin – we would also add the certainty of a property tax appeal. Host communities typically rely on the hefty annual check paid by electric Continue Reading
Pleading Breach of the Implied Covenant of Good Faith and Fair Dealing in the Publicly Traded Master Limited Partnership Context
In Dieckman v. Regency GP LP, --- A.3d ---, 2017 WL 243361 (Del. Jan. 20, 2017), the Delaware Supreme Court reversed the Court of Chancery[1] and held that the common unitholder plaintiff’s complaint properly stated a claim for breach of the safe harbor provisions of defendant Regency Energy Continue Reading
TCPA: The Next Wave of Class-Action Lawsuits Asserts Consumer’s Right to Withdraw Consent to Receive Text Messages
Telephone Consumer Protection Act (TCPA) Claims Target Text Messaging Advertising Campaigns Last year, we warned large and small companies about the proliferation of class action lawsuits brought by plaintiffs alleging violations of the New Jersey Truth-in-Consumer Contract, Warranty, Continue Reading