By Memorandum Opinion entered by The Honorable Maryellen Noreika in ANI Pharmaceuticals, Inc. v. Method Pharmaceuticals, LLC et al., Civil Action No. 17-1097-MN (D.Del. January 11, 2019), the Court granted-in-part Defendants’ Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(2) or, in the Alternative, Transfer Venue to the extent that it sought to transfer the action from the District of Delaware to the Northern District of Texas. The Court denied the portion of Defendants’ Motion that sought dismissal under Federal Rule of Civil Procedure 12(b)(2) finding that the question of personal jurisdiction over defendant Method presented a close call but the Court lacked personal jurisdiction over defendant Tucker. Id. at *12. The Court explained that it would exercise its discretion in transferring the case regardless of the existence of personal jurisdiction over defendant Method because “judicial economy favors the prosecution of a case in its entirety, and that weighs in favor of transferring the case to the Northern District of Texas where there is no question of jurisdiction.” Id.

Ultimately, in analyzing the twelve Jumara factors, the Court found that eight factors weighed in favor of transfer while the remaining four factors were neutral. Id. at *12-19. The Court noted that, although “a plaintiff’s choice of venue is generally provided paramount consideration under Jumara, the Court’s inability to assert personal jurisdiction over one of the defendants undermine[d] that deference here. Id. at *19.

A copy of the Memorandum Opinion is attached.

By Memorandum Order entered by The Honorable Leonard P. Stark in North Atlantic Operating Co., Inc. et al. v. Dunhuang Group/d/b/a DHgate et al., Civil Action No. 18-154-LPS (D.Del. July 11, 2018), the Court granted in part Petitioners North Atlantic Operating Company, Inc. and National Tobacco Company, L.P.’s Motion to Compel Non-Party Dunhung Group d/b/a DHgate, DHlink, DHport, and DHpay to Comply with Plaintiffs’ Subpoena Duces Tecum (“Motion to Compel”) to the extent it requested the Court to transfer the Motion to Compel to the United States District Court for the Eastern District of Michigan. In so ordering, the Court found that “extraordinary circumstances exist in this case, such that transfer is warranted so as to not disrupt the issuing court’s management of the Underlying Action.” Id. at *3.

A copy of the Memorandum Order is attached.

By Memorandum Opinion entered by The Honorable Gregory M. Sleet in SurgiQuest v. Lexion Medical, LLC., Civil Action No. 14-382-GMS (D.Del. May 16, 2018), the Court denied Plaintiff/Counterclaim-Defendant SurgiQuest’s renewed motion for judgment as a matter of law (“JMOL Motion”) on the jury’s verdict which found that SurgiQuest had engaged in false and misleading advertising and unfair competition in violation of the Lanham Act and Delaware common law and awarded monetary damages to Defendant/Counterclaim-Plaintiff Lexion Medical, LLC. The Court also denied Lexion’s post-trial motions for permanent injunction, disgorgement of profits, attorneys’ fees and prejudgment interest. Id. at *2. The Court granted Lexion’s motion for postjudgment interest. Id. at *26.

In support of its JMOL motion on the jury’s award of monetary damages, SurgiQuest asserted that no reasonable jury could have awarded money damages because (1) Lexion failed to prove causation between the false advertising claims and damages; (2) the jury instructions on causation and damages were incorrect; and (3) the Court improperly admitted hearsay and salesperson confusion evidence. Id. at *4. In response, Lexion contended that SurgiQuest could not prove a lack of sufficient evidence because the pertinent statements were literally false, consumers purchased SurgiQuest’s product and stopped purchasing Lexion’s product, and the evidence of confusion showed that the false advertising actually deceived a portion of the buying public. Id. at *5.

After considering the entire record in the case, including the evidence in the record, the parties’ post-trial submissions, and the applicable law, the Court agreed with Lexion and concluded that (1) the evidence at trial was sufficient to support the jury’s verdict that there was a causal connection between the false advertising by SurgiQuest and Lexion’s loss; (2) the jury instructions were proper; and (3) the statements alleged by SurgiQuest to be hearsay and salesperson confusion evidence were properly admitted. Id. at *5-13. The Court also concluded that there was sufficient evidence to support the jury’s verdict awarding punitive damages to Lexion. Id. at*13-17.

A copy of the Memorandum Opinion is attached.

By Memorandum Order entered by The Honorable Sue L. Robinson in Adtile Technologies, Inc. v. Perion Network Ltd., et al., Civil Action No. 15-1193-SLR (D.Del., June 23, 2016), the Court denied plaintiff Adtile Technologies, Inc.’s motion for preliminary injunction after concluding that Adtile had not shown likelihood of success on the merits of the claims asserted:  Delaware statutory misappropriation of trade secrets, common law misappropriation of confidential information, copyright infringement, and Lanham Act false designation of origin and unfair competition.  In reaching its conclusion, the court determined that Adtile’s trade secrets and confidential information were not sufficiently delineated from what is either publicly available or discernable from visual details of published Motion Ads. Id. at *13.  The Court also noted that the fact that Adtile included, without attribution, the handphone image in two ads provided to Undertone as deliverables under the License Agreement weakened Adtile’s copyright and trademark infringement arguments. Id.

A copy of the Memorandum Order is attached.

The general take away is the granting of a preliminary injunctions is considered an “extraordinary remedy” that will only be granted in limited circumstances. Parties seeking preliminary injunctions must demonstrate the fundamental requirements of likelihood of success on the merits and irreparable harm if relief is not granted to have any chance of obtaining a preliminary injunction.

By Memorandum Opinion and Order entered by The Honorable Sue L. Robinson in AstraZeneca AB, et al. v. Camber Pharmaceuticals, Inc., Civil Action No. 15-927-SLR (D.Del., November 19, 2015), the Court granted the AstraZeneca plaintiffs’ motion for a preliminary injunction against defendant Camber Pharmaceuticals thereby enjoining defendant from selling its generic esomeprazole product (a purple-colored generic version of Nexium®), subject to the narrow exception set forth in paragraph 3 of the Court’s Order.

Weighing all of the factors discussed in the preliminary injunctive relief analysis in the “totality of the circumstances” as set forth in Kos. Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 711 (3d Cir. 2004), the Court concluded that AstraZeneca had carried its burden to prove that it would likely succeed on the merits of the case pursuant to the Lapp factors analysis, that it would likely suffer “irreparable harm” if the requested relief was not granted, and that the balance of hardships and the public interest weigh in its favor.  Id. at 5-14.

Copies of the Memorandum Opinion and Order are attached.

By Memorandum Opinion entered by The Honorable Sue L. Robinson in AstraZeneca AB, et al. v. Dr. Reddy’s Laboratories, Inc., Civil Action No. 15-988-SLR (D.Del., November 6, 2015), the Court granted the AstraZeneca plaintiffs’ motion for a temporary restraining order, including ordering defendant to immediately stop the sale, delivery, transfer, or other disposition of its generic esomeprazole product (a purple-colored generic version of Nexium®) that is the subject of the action, pending further hearing or trial of the action.  Weighing all of the factors discussed in the preliminary injunctive relief analysis in the “totality of the circumstances” as set forth in Kos. Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 711 (3d Cir. 2004), the Court concluded that AstraZeneca had carried its burden to prove that it would likely succeed on the merits of the case, that it would likely suffer “irreparable harm” if the requested relief was not granted, and that the balance of hardships and the public interest weigh in its favor.  Id. at 5-13.

A copy of the Memorandum Opinion is attached.

By Memorandum Opinion entered by The Honorable Leonard P. Stark in Perlight Solar Co. Ltd v. Perlight Sales North America LLC, et al., Civil Action No. 14-331-LPS (D.Del., September 18, 2015), the Court granted Defendants’ motion to dismiss Plaintiff’s Complaint alleging trademark infringement against Defendants for lack of personal jurisdiction as to Defendants Perlight Sales North America LLC, Zebra Energy LLC, Sunny Liu and Gideon Needleman.  The Court also denied Plaintiff’s request for jurisdictional discovery after finding that Plaintiff did not meet its burden of showing that its claim was not “clearly frivolous.”  See id. at 9-10.

A copy of the Memorandum Opinion is attached.

By Memorandum Order entered by the Honorable Sue L. Robinson in Schering-Plough Healthcare Products, Inc. v. Neutrogena Corporation, Civil Action No. 09-642-SLR (D.Del., June 8, 2011), the Court denied the motion for permanent injunction of plaintiff Schering-Plough Healthcare Products, Inc. (“Schering-Plough”) seeking to enjoin defendant Neutrogena Corporation (“Neutrogena”) from all future use of the helioplex® mark in DEHN-free products. Id. at 8. The Court had previously granted Schering-Plough’s motion for partial summary judgment after finding that the specific challenged advertising of Neutrogena with respect to its “Ultra Sheer Dry-Touch Sunblock SPF 100+” sunscreen (the “100+ Product”) was literally false when the 100+ Product, for a certain period of time, did not contain DEHN. See id. at 2. Although the Court had previously found the challenged advertising of Neutrogena was literally false, the Court later found that the permanent injunction requested by Schering-Plough was not warranted because Schering-Plough failed to articulate any particular injuries, let alone irreparable injury, as a result of Neutrogena’s false advertisements and Schering-Plough’s proposed injunction was too broad. Id. at 4-9.

A complete copy of the Court’s Memorandum Order is attached hereto.