Publications & Presentations
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Recent PublicationsView all Publications
Corrective Action Catch 22: Court of Federal Claims Holds Agency Action Must Be Rational Even If GAO Protest Decision Was Not.
Authors: C. Joël Van Over, Alexander B. Ginsberg
The United States Court of Federal Claims’ July 15, 2014 decision in RUSH Construction, Inc. v. United States, reflects the unusual circumstance in which the court effectively sat in appellate review of an earlier bid protest decision by the Government Accountability Office (GAO) after the U.S. Army Corps of Engineers followed GAO’s recommendation in that decision. The court ultimately overruled GAO when it found that it was arbitrary and capricious for the agency to follow GAO’s irrational recommendation. In so doing, the court cited numerous flaws in GAO’s reasoning and its reliance on inapposite case law. The RUSH decision, authored by the Court of Federal Claims’ new chief judge, may foretell greater judicial scrutiny of agency corrective action and a shift at the court away from deference to GAO’s bid protest recommendations.
English Contract Law and Oral Contracts - Your Word May Still Be Your Bond
Author: Raymond L. Sweigart
Verbal contracts have their place in English law
Whether it was American movie mogul Samuel Goldwyn or the Australian/Irish politician Bryan O’Loghlen who first said, ‘A verbal contract isn’t worth the paper it’s written on’, with all due respect, they did not have this quite right and recent case law confirms they actually had it quite wrong, at least under English law. A contract forms once the parties have, to all outward appearances, agreed the same terms on the same subject matter, normally through offer and acceptance (Air Studios (Lyndhurst) Limited T/A Entertainment Group v Lombard North Central PLC ). However, many who negotiate commercial contracts often assume that there is a further requirement of formality and they are not bound unless and until the agreement is reduced to writing and signed by the parties. This is not true, oral contracts most certainly exist, and they are certainly enforceable with a few exceptions, and have been for a very great number of years.
Delaware Supreme Court Permits Stockholders to Overcome Corporation’s Attorney-Client Privilege for “Good Cause”
Authors: Bruce A. Ericson, Dorothy F. Kaslow
On July 23, 2014, the Delaware Supreme Court in Wal-Mart Stores, Inc. v. Indiana Elec. Workers Pension Trust Fund IBEW held that plaintiff stockholders, who make a showing of good cause, can inspect documents concerning a corporation’s internal investigation even if those documents were otherwise covered by the attorney-client privilege and even if the plaintiffs’ inspection demands are made in Section 220 litigation.1 In so ruling, the Supreme Court expressly adopted the “fiduciary” exception to the attorney-client privilege first announced in a Fifth Circuit appellate decision dating from 1970, Garner v. Wolfinbarger.2 The Court also ruled that Garner does not apply to efforts to protect non-opinion work product, which should be analyzed under Court of Chancery Rule 26(b)(3).