While we're talking about reply briefs—Judge Connolly this month affirmed Judge Burke's conclusion that a defendant had "abandoned" arguments that it set forth in its opening brief, because the defendant failed to further address those arguments in a reply after receiving pushback in the answering brief.
Here is what Judge Burke said:
In its opening brief, Defendants appeared to challenge these claims on two other grounds . . . . However, after Plaintiff pushed back on these issues in its answering brief, Defendants did not further address the issues in their reply brief. . . . Thus, Defendants have abandoned these arguments and the Court will not further address them herein.
Judge Connolly disagreed that such arguments are necessarily "waived":
I agree with Defendants that the failure to address in a reply brief an argument that was raised in the opening brief does not constitute a waiver of that argument. Our Local Rules do not require a reply brief and they prohibit a party from repeating in a reply brief the same arguments raised in the opening brief. Del. L. R. 7.1.2.
But he agreed with Judge Burke's conclusion that they were "implicitly conceded":
Under the circumstances present here—where Defendants' opening brief inundated the Magistrate Judge with arguments, a number of which were conclusory—I do not fault the Magistrate Judge for finding that Defendants implicitly conceded the two arguments in question by failing to counter in the reply brief the specific points of rebuttal Plaintiffs made to those arguments in the answering brief.
He also included some interesting quotes about how failure to contest rebuttal points is "not necessarily a waiver, but it is a risky tactic, and sometimes fatal" (quoting a Seventh Circuit opinion).
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