Motions for attorneys' fees are generally a longshot in the district. It is, after all, especially hard to show that your case "stands out from the others."
Accordingly, I see a lot of these motions that reach well back into the case for evidence of vexatious conduct. One of the more common ones is dropping of asserted claims or defenses, which is generally put forward with the suggestion that those claims or defenses were necessarily meritless.
In denying a motion for fees yesterday, Judge Noreika gave her thoughts on the issue:
It is hardly uncommon that, during the course of litigation, parties make concessions or drop claims in order to focus their cases or preserve their resources. Indeed, Defendant also made concessions, dropping its invalidity counterclaims approximately two months before trial. The Court generally views such efforts as positive developments and will not penalize (either side) for streamlining the issues in an appropriate manner.
CMP Development LLC v. Amneal Pharms. LLC, C.A. No. 21-549-MN, D.I. 151 (D. Del. May 7, 2024).
For those curious, the relevant claims were dropped a few months before trial, around the time the pretrial order was filed—fairly late as these things go.
The opinion was otherwise pretty standard—noting that the issue (DOE infringement) was closer than the defendant made it sound and denying the request.
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