Posts tagged "Pharmaceuticals"

Alnylam Pharmaceuticals, Inc. v. Dicerna Pharmaceuticals, Inc. (Lawyers Weekly No. 09-026-17)

COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT CIVIL ACTION No. 2015-4126 (Specially Assigned to Leibensperger, J.) ALNYLAM PHARMACEUTICALS, INC. vs. DICERNA PHARMACEUTICALS, INC. MEMORANDUM AND ORDER ON ALNYLAM’S SPECIAL MOTION TO DISMISS COUNTERCLAIMS UNDER THE ANTI-SLAPP STATUTE, AND ON ALNYLAM’S MOTION TO DISMISS COUNTERCLAIMS UNDER RULE 12(b)(6)1 These motions present the issue of whether, in a battle between business competitors, the defendant may assert a counterclaim against the plaintiff based on plaintiff’s commencement of the lawsuit. Specifically, may the defendant proceed on counterclaims of tortious interference with advantageous relations, abuse of process and violation of G.L. c. 93A based on the allegation that the initiation of the lawsuit by the plaintiff was motivated by an ulterior purpose to squelch the defendant as a competitor, as opposed to a good faith belief in the claims asserted? Here, Alnylam attacks counterclaims asserted by Dicerna. Alnylam seeks dismissal of Dicerna’s counterclaims on the ground that they are all based on Alnylam’s exercise of its right to petition the government by commencing the lawsuit. Alnylam invokes the protection of the anti-SLAPP staute, G.L. c. 231, § 59H. Alnylam also contends that Dicerna’s counterclaims fail to meet the standard for asserting viable causes of action. Thus, Alnylam moves for dismissal 1 This Order will also address Alnylam’s Rule 42(b) Motion to Bifurcate. 1 under Rule 12(b)(6). I will address the anti-SLAPP motion first as the resolution of that motion will necessarily determine whether the counterclaims survive Rule 12(b)(6). BACKGROUND This action was commenced by Alnylam in June 2015. Alnylam claims that Dicerna misappropriated Alnylam’s trade secrets. In general, the trade secrets include those developed at Merck and purchased by Alnylam for millions of dollars. Alnylam alleges that the theft occurred in at least two ways. First, Dicerna hired scientists who had been employed at Merck, and those scientists brought Merck’s trade secret documents with them to Dicerna. Second, Dicerna had bid for Merck’s trade secrets at the same time as Alnylam. In that connection, Dicerna was provided with access to Merck’s trade secrets under an agreement not to use or disclose the trade secrets if the bid were unsuccessful. Dicerna’s bid was unsuccessful, as the sale went to Alnylam. Alnylam claims that Dicerna is, nevertheless, using the Merck/Alnylam trade secrets. Alnylam seeks damages and an injunction in its complaint but it chose not to seek a preliminary injunction. Dicerna did not attack Alnylam’s complaint with a motion to dismiss or a motion for summary judgment. Two years later, in June 2017, Dicerna moved to amend its responsive pleading to assert counterclaims against Alnylam. After hearing, I allowed the motion to amend. The counterclaims are in three counts: Count I, Tortious Interference With Advantageous Relations; Count […]

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Posted by Massachusetts Legal Resources - November 2, 2017 at 8:44 pm

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Commonwealth of Massachusetts ex rel. Kelly, et al. v. Novartis Pharmaceuticals Corporation, et al. (Lawyers Weekly No. 12-098-17)

    COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss SUPERIOR COURT CIVIL ACTION 2016-03107-BLS1 COMMONWEALTH OF MASSACHUSETTS, EX REL., ALLISON KELLY AND FRANK GARCIA vs. NOVARTIS PHARMACEUTICALS CORPORATION & Others1 1 Novartis Corporation and Genentech, Inc. 2 The District Court’s order actually dismissed the state claims with prejudice, notwithstanding its declination of jurisdiction over them. The First Circuit reversed that part of the District Court’s decision.  It observed that while the District Court could have dismissed the state claims based on the same reasoning applied to the federal claims had it retainedjurisdiction, once it declined jurisdiction, it was required to dismiss the state claims MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS RELATORS’ FIRST AMENDED COMPLAINT Allison Kelly and Frank Garcia (Relators) brought qui tam actions against Genentech, Inc. (Genentech) and Novartis Pharmaceuticals Corporation (Novartis) in federal district court in Massachuesetts under the Federal False Claims Act (FCA), 31 U.S.C. § 3729 et seq., the Massachusetts False Claims Act (MFCA), G. L. c. 12, § 5B(a)(1)-(10), and several other analogous state statutes.  The federal claims asserted in their complaints were dismissed by the District Court for failure to plead the alleged fraud with the specificity required by Fed. R. Civ. P. 9(b).  See U.S. ex rel. Garcia v. Novartis  Pharm. Corp.,91 F. Supp. 3d 87 (D. Mass. 2015).  The dismissal was affirmed by the First Circuit Court of Appeals.  See U.S. ex. rel. Kelly v. Novartis Pharm. Corp.,827 F. 3d 5 (1stCir. 2016) (Kelly).  While the Relators’ FCA claims were dismissed with prejudice, their state claims were dismissed without prejudice because the District Court declined to exercise supplemental jurisdiction over them.2 The Relators then filed 2     without prejudice.  Kelly, 827 F. 3d at 16. 3 Novartis Corporation is also a named defendant, but the Relators did not serve that company with a summons and complaint or the Amended Complaint, so the case is dismissed as to it. 4 Because the court concludes that the Relators have not complied with Rule 9(b), it will not consider the defendants’ arguments that the Amended Complaint should also be dismissed because the“public disclosure” bar applies or because the Relators failed to file the Amended Complaint under seal. thequi tam action against Genentech and Novartis now before the Superior Court alleging claims underthe MFCA.3 As with their previous federal complaints, the Relators allege that the defendants, who jointly marketed the asthma medication Xolair, providedillegal kickbacks to certain Massachusetts doctors, which caused the doctors to prescribe Xolair to Massachusetts Medicaid patients and submit false reimbursement claims for the drug to Medicaid.  The defendants now move to dismiss the Relator’s First Amended Complaint (Amended Complaint) contending, among other grounds, that the Relators have again failed […]

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Posted by Massachusetts Legal Resources - August 4, 2017 at 9:01 am

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Chitwood v. Vertex Pharmaceuticals, Inc. (Lawyers Weekly No. 10-046-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12101   FRED CHITWOOD  vs.  VERTEX PHARMACEUTICALS, INC.       Suffolk.     November 9, 2016. – March 20, 2017.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1]     Corporation, Stockholder, Custodian of corporate records.       Civil action commenced in the Superior Court Department on August 15, 2013.   The case was heard by Janet L. Sanders, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     Steven J. Purcell, of New York (Justin Sherman, of New York, & Mitchell J. Matorin also present) for the plaintiff. Todd Cronan (William B. Brady also present) for the defendant. Ben Robbins & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief.     GANTS, C.J.  Under G. L. c. 156D, § 16.02 (b), of the Massachusetts Business Corporation Act (act), a shareholder of a corporation, upon written notice, is entitled to inspect and copy various categories of corporate records if the shareholder makes the demand “in good faith and for a proper purpose,” and if the particular records sought to be inspected are “directly connected” with that purpose.  The plaintiff, Fred Chitwood, a shareholder of the defendant Vertex Pharmaceuticals, Inc. (Vertex or the corporation), made a demand for corporate records pursuant to § 16.02 (b), claiming that inspection of the records was needed to investigate his allegation that the board of directors had committed a breach of its fiduciary duty of oversight with regard to Vertex’s financial reporting and insider stock sales.  Vertex “rejected” the demand, claiming that the demand was “invalid under Massachusetts law” and that it was improper because the board, following a reasonable inquiry by a special committee of independent directors, had rejected his earlier demand to commence derivative litigation based on the same allegations of misconduct.  The plaintiff commenced an action in the Superior Court, seeking an order compelling Vertex to make the requested corporate records available to the plaintiff.  After a bench trial, the judge dismissed the complaint with prejudice, concluding that the plaintiff had failed to meet his burden of showing a proper purpose. The issue on appeal is whether the judge applied the correct standard regarding the proper purpose required to inspect corporate records under § 16.02 (b).  We conclude that she did not.  Because the judge applied too demanding a standard […]

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Posted by Massachusetts Legal Resources - March 20, 2017 at 7:46 pm

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