A recent Chancery decision in Tesaro, Inc. v. Anaptyseio, Inc., C.A. No. 2025-1357-KSJM (Del. Ch. April 24, 2026), analyzed claims of repudiation or anticipatory breach of a collaboration agreement between two pharmaceutical companies regarding the development of a cancer drug. The court, in an issue of first impression, analyzed Delaware’s recently amended Anti-SLAPP statute which provides for an expedited timetable to dismiss claims based on that statute.

Highlights of Repudiation Analysis

The court described the requirements to successfully claim repudiation of a contract. Slip op. at 10-13. The court’s reasoning for not regarding a so-called letter of termination as satisfying the requirements of repudiation includes the following key points:

  • The letter was not a unilateral demand to alter the terms of the agreement. Id.;
  • At no point in the letter was there a demand for new terms or a suggestion that the letter sought to add additional obligations to the parties’ agreement. Id.;
  • The letter did not express, in unequivocal positive, and unconditional words or conduct, that the party would not perform the agreement unless new terms and conditions were added. Id.;
  • The letter did not ask the counterparty to waive any rights, nor did it state that the party would not comply with its own duties. Id.;
  • The court explained that “a threat to exercise contractual rights in the event of breach is not repudiation, even if that contractual right is reversion. Quite the opposite—exercise of  contractual rights under an agreement requires affirming that agreement.” Slip op. at 13.

The court also emphasized that “Delaware law allows a party to retract a repudiation, ‘nullifying’ it and ‘placing the matter in its original position.’ A party may do so if the time of performance has not lapsed and the non-repudiating party ‘treats the contract as still enforced.’” Id.

Anti-SLAPP Statute Analysis

Delaware adopted on September 15, 2025, the Uniform Public Expression Protection Act (UPEPA), commonly referred to as the Anti-SLAPP statute. The purpose was to “enhance protections from strategic lawsuits against public participation (“SLAPPs”).” SLAPPs are defined as meritless lawsuits brought to “ensnare their targets in costly litigation that chills society from engaging in constitutional protected activity.” Slip op. at 14-15. (Sounds like that description could apply to a broad range of lawsuits.)

The UPEPA provides procedural relief to those opposing such a claim. Section 6003 authorizes a special motion that entitles a successful movant to costs, attorney fees, and expenses if the court grants the Rule 12(b)(6) motion. Section 6003 also provides that motions to dismiss are statutorily expedited.

Section 6007(a) establishes three elements of a so-called expedited “special motion” to dismiss provided for under Section 6003. Id. at 15. Only one of those is at issue here, and that requires the moving party to establish under Section 6002(b) or (d) of this title that this chapter applies. Id.

That first element under Section 6007(a) imposes two requirements. First, the movant must demonstrate that he engaged in a protected activity under Section 6002(b) or (d). Next, the movant must “also establish a nexus between the cause of action and the protected activity—that is that the “responding party’s suit arises from the movant’s constitutionally protected activity.” Id. at 16. See also footnote 70 (“. . . that a cause of action arguably may have been triggered by protected activity does not entail it as one arising from such.”)

The court provides a detailed analysis of the requirement of a “nexus” between the “protected activity” and the cause of action. Id. at 17 and note 71.

The court also describes what is protected speech pursuant to the statute. It must be “injury-producing conduct.” Defamation claims are the quintessential example. Id. at 18. The court distinguished between “speech that provides the basis for liability and speech that provides evidence of liability. A communication that serves merely as evidence of a complained-of wrong is not itself the injury-producing conduct.” Id. at 18.

The nexus requirement mandates that the protected activity be the cause of the injury. “How a party communicates repudiation does not render the communication the injury-producing action. Put differently, no matter how the decision to repudiate was conveyed, the injury in a claim for anticipatory breach is the act of repudiation—not the way it was communicated.” Id. at 19-20.

Finally, although the UPEPA permits a successful movant to recover fees and costs if the motion was “frivolous or filed solely with intent to delay the proceeding,” the court determined that this case was filed and argued in good faith, and therefor declined to shift fees. Id. at 20.