Berk v. Choy · ¶62

The majority and I appear to agree that Delaware’s affidavit requirement—as interpreted by the Delaware Supreme Court—conflicts with Rule 12(d). See ante, at 5. That conflict suffices to displace §6853’s requirement. But to the extent that the majority ties its Rule 12 analysis to the purported Rule 8 conflict, see ibid., I think the majority has gone further than it needs to, introducing incoherence in the process.

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