Early this morning SPPI filed an emergency motion with the Federal Circuit asking the court to enjoin sale of a Sandoz generic until after the appeal is decided. There is a similar (first filed) motion pending before the district court. Given the approaching March 7 deadline, SPPI explained that it could not wait for the district court to rule on the first emergency motion to enjoin Sandoz.
Federal Circuit closed today due to inclement weather. MDCO/Hospira oral argument canceled. Will be rescheduled probably for a few months from now.
A decision in the case most likely now will not be forthcoming until later this year. Absent some sort of emergency relief, my best guess is that we see the Hospira Angiomax generic in June.
If you are interested, a recording of the oral argument will be available on the Federal Circuit's web site on Friday. I am surprised that the market seems to be taking the risk represented by this case rather casually.
I have no position in the stock. I am simply trying to understand the extent to which the stock will move up or down when the emergency motion filed by SPPI yesterday is ruled upon by the district court and most likely shortly thereafter by the Federal Circuit.
As an aside, your understanding of the circumstances under which enhanced damages may be awarded in a patent suit is incorrect. If there is a launch in the near term there is no possibility of trebled damages given the district court's ruling.
Why does H.C. Wainwright assume there will be no launch during the pendency of the appeal? Does it believe the Federal Circuit will issue an injunction prohibiting sales until the appeal is concluded or do they believe there will not be an at risk launch? Thanks.
At about 1:15 today all parties filed a notice in the ED Tex case 13cv909 notifying the court of a global settlement. Combined with yesterday's notice in the other major case group it now appears that (other than Dropbox) the defendants have all settled with Marathon.
By way of warning, I am on holiday so I am not too closely following or researching the status of the litigation. I sold 85% of my position on Thursday and Friday as it seemed less likely that a settlement would be reached. I would have sold the balance before close on Fiday, but missed the posting of the notice due to a quirk in the BD web site. I expect the stock price may retreat on Tuesday, but I do not believe such movement is indicative of RVP's chance of long term success.
The median time from filing a notice of appeal to a final opinion in cases involving an oral argument to the Fifth Circuit is 13.4 months. Therefore, there is a good chance by this time next year the case will be finally resolved. While over 88% of all Fifth Circuit cases result in a complete affirmance or dismissal, that statistic is little help in understanding what will happen in any particular case. I continue to believe the Lanham Act count and judgment stands on very firm ground. The antitrust determination is more problematic, but I believe also more likely than not to stand. Of course no one can be certain. If only the Lanham Count is affirmed, there would have to be a remand for a new damages trial.
Of more interest to me is what will happen in the short term. I expect there will be a lot of activity before the district court involving prejudgment interest, RVP requests for discovery concerning BD's compliance with the injunction and possible contempt proceedings depending on what RVP learns from discovery. This activity will likely at times result in court orders that at least temporarily move the stock price up in a meaningful way. Therefore, I will likely again add to my position should the price drop in a substantial way.
Quite odd that there is no indication yet on the BD web site that it is complying with the injunction. Given the order requires compliance by the end of today I expected word of a settlement would have already been conveyed to the court or BD to have already complied with the public notice requirement. It does not make sense unless BD intends to post the public notice only in the last few hours or there has been communication with the court outside of the public record.
I agree the two filings yesterday are of no consequence. The second filing was BD's opposition to RVP's request for minor costs associated with the litigation. More importantly, I do not believe the fact the papers were filed provides any indication of the state of the settlement discussions. As I previously mentioned, BD continued to file papers and to aggressively litigate to within hours of the last settlement between the parties years ago. Probably, the team responsible for filing these papers consisted of mid-level and senior associates not involved with the settlement discussions.
I still can not locate any indication on the BD web site that it has begun compliance with the court injunction. It may simply be that BD will wait until the last moment to comply. On the other hand, the lack of any evidence of compliance may mean negotiations continue between the parties.
The saying "settled on the court house steps" is often an accurate description of the settlement process. Things will likely not be clear for another 24 to 36 hours.
The Markman decision in the Vantage Point case was issued a short while ago. The court adopted virtually all of the claim constructions propounded by Vantage. A near complete win for Vantage, except the court held dependent claim 2 of the '329 patent invalid as indefinite under 35 U.S.C. section 112. Given this is a narrow, dependent claim covering limited subject matter this appears to be a minor point. Given the ruling one might expect more settlements.
Probably other meditations taking place in next few days thereby creating the possibility of other settlements. Existing order requires all meditations to be concluded by Feb 24.
I understand Vantage Point and TI reached a settlement in the 13cv909 (ED Tex) case yesterday. If true do you believe it will have a positive impact on stock price in short term?
BD in seeking to stay the injunction argued repeatedly that in order to comply BD would have to begin implementation well before the due date. I can not find any indication that it has begun complying with the injunction. For example, the required notice has not yet been posted to the web site. An article from awhile ago indicates BD has over 4,000 distributors. Does anyone have a friend at a medical supply distributor? If so, it would be simple to learn if BD has begun the notification and training process.
I would not be surprised to see a request (on Thursday or very early Friday) for an extension of time filed with the district court that among other things emphasizes the difficulty of complying and hints at settlement discussions.
Many of you may already be aware, but I just learned of BD's settlements of several antitrust class action cases in 2013 brought by hospitals and pharmacies that accused BD of "stifling competition from other hypodermic product makers." (See http://www.law360.com/articles/462053/becton-dickinson-pays-22m-to-settle-syringe-antitrust-suits ). In my mind that reinforces the idea that BD may be interested in settling this matter. BD has a clear history of settling these types of suits and should want to avoid sending notices admitting wrong doing to entities that have recently shown a willingness to sue them.
By the way, any discussion of contempt involves a rather complicated question. In theory, a party could be held in civil contempt yet avoid any penalty should the underlying order be held invalid on appeal. (see ePlus Inc. v. Lawson). Yet if they are held in criminal contempt the invalidity of the underlying order would not be a defense on appeal (i.e. the collateral bar rule). Suffice to say it is an issue a party would be best to avoid.
At what point will the absence of a settlement begin to negatively impact the stock price. Any thoughts?
In the scheme of things, Becton Dickinson is not an overly important client to Mckool Smith or Paul Weiss. I expect the lawyers will counsel in favor of quoting the language in the injunction order so as to be certain of complying. The question is how far will BD push for watered down language. If they take this tact and are found to have crossed the line, there can be very serious consequences. In fact, if this scenario comes to pass the existence of a contempt proceeding would possibly be the catalyst triggering a settlement.
Amusing language used in the 10Q - "corrective advertising notice." Should this not settle, this sort of language in a 10Q may indicate that BD will hedge the language in the notice or send complementary notices that undercut the message of the required notice. As someone previously mentioned, this would lead to contempt proceedings. Does anyone know if BD has admitted in any public filing that it has been ordered to explicitly admit wrong doing? If not this indicates a real fear of making this admission and makes a settlement more likely in my opinion.