Magistrate Judge Thynge issues report and recommendation on cross-motions for summary judgment relating to covenant not to sue and motion to strike portions of reply brief.

Magistrate Judge Mary Pat Thynge recently issued a report and recommendation addressing cross-motions for summary judgment, as well as the plaintiff’s motion to strike portions of the defendant’s reply brief in support of its summary judgment motion. Cornell Univ., et al. v. Illumina, Inc., C.A. No. 10-433-LPS-MPT (D. Del. June 25, 2013). Judge Thynge agreed with the plaintiff that the defendant’s “reply brief relie[d] on inadmissible evidence from the parties’ settlement negotiations[,]” and granted the motion to strike such evidence from the reply brief. Id. at 5. Although the defendant argued that the plaintiff’s own motion and opening brief opened the door to such evidence, Judge Thynge explained, “[e]ven if plaintiffs ‘opened the door,’ that door should remain closed where plaintiffs’ references to the settlement agreement were inappropriate, and neither parties’ evidence would be admissible.” Id. at 6. Judge Thynge agreed in part with the plaintiff’s additional argument that portions of the defendant’s reply brief should be stricken because they raised new arguments and facts not appearing in the defendant’s opening brief. Id. at 9-15.

Judge Thynge then considered the parties’ cross-motions for summary judgment. Construing a settlement agreement under California law, as well as issues of successor liability under Delaware corporate law, the Court agreed with the defendant that two of the plaintiffs, Life Technologies and Applied Biosystems, were bound by a covenant not to sue entered into by the defendant and Applera Corporation, because they were “affiliates” or “successors” of Applera under the agreement. Id. at 26. But the Court agreed with plaintiff Cornell University’s argument that it was not bound by the covenant not to sue because it was not an affiliate or successor of the settling party, which the defendant did not contest in briefing. Id. at 26.

Cornell Univ., et al. v. Illumina, Inc., C.A. No. 10-433-LPS-MPT (D. Del. June 25, 2013).

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