Federal state governments have begun to take significant steps to make full adjustments to implementation timelines, given the challenges posed by the COVID-19 health emergency. On March 20, 2020, New York Governor Andrew Cuomo adopted Executive Order 202.8, „Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency,“ which, due to the persistence of the COVID-19 health emergency, temporarily imposes time limits on civil parties to act in accordance with New York State law.  The provisions of the Executive Order come into effect immediately and have a significant impact on all civil actions pending in new York State courts, including the New York State Supreme Court (and their commercial division). The Executive Order provides, in a relevant part, that parties wishing to benefit from the limitation period for limitation periods in New York or Delaware should carefully consider the choice of law analysis applicable to their claims. Under New York law, New York State courts apply the New York State statute of limitation period to claims arising under New York law. Under the New York Credit Act, the plea alleging a non-resident born outside New York must be in good time after the limitation periods, both in New York and in the jurisdiction in which the plea was brought. Other states with similar legal provisions regularly apply the New York limitation period to claims brought under New York law but filed in other jurisdictions. Courts in New York and other jurisdictions may be asked to interpret the application of the executive order to the period of time of claims that might otherwise be time-barred under the applicable limitation periods. All of these considerations remain true even under Delaware law and the recent Injunction of the Delaware Supreme Court.
Even in cases where a statutory limitation period may be subject to tolls, the toll is usually suspended as soon as an applicant can be debited from the notification of his or her potential rights. In this dispute against the biopharmaceutical company AstraZeneca, which resulted from a database subscription agreement, the Commercial Litigation Division of the Delaware Superior Court decided that the defendant AstraZeneca was entitled to a summary judgment because, more than three years before the commencement of the appeal, the plaintiff Ocimum Biosolutions had received a notice of investigation into his claims for breach and misappropriation of trade secrets. Read more › Although the Tribunal found that most of the claims were time-barred prior to the filing of the Section 220 action, the Tribunal found that it had dismissed certain infringement applications that had become available at the latest. In this context, the Tribunal pointed out that there was a „clear link“ between the mismanagement claims that were ultimately raised and the potential mismanagement that had to be addressed by the section 220 appeal. Other factors that the Tribunal found to be favourable to the Section 220 toll were (i) the success of the Section 220 remedy; (ii) lack of evidence of bad faith, for example. B that the remedy was pursued under section 220 in order to „delay“ and delay the lodging of claims; and (iii) evidence that the complaint was made in good faith under section 220, after the defendant repeatedly refused to provide the requested information. The Tribunal also held that neither the defendant`s lack of fraudulent concealment nor the applicant`s ability to assert rights without the information gathered in the section 220 application „alone dictates that the toll is inappropriate“. The result of the decision is that most parties probably intend to specify some time to assert claims. Language such as „indeterminate survival“ should no longer be used if it can be avoided. M&A agreements should also expressly provide that insurance and guarantees will survive conclusion. . .