United States District Court, D. Delaware
CSL Behring and Defendant Bayer Healthcare are competitors in
the market for recombinant Factor VIII, a human blood factor
used to treat hemophilia A patients. They are parties to a
Supply and License Agreement (the "Supply
Agreement") (D.I. 32-1) that memorializes Bayer's
obligation to supply CSL with recombinant Factor VIII. The
parties have asserted claims and counterclaims against each
other for breach of the Supply Agreement and other related
torts. Currently pending before the court is CSL's Motion
to Dismiss Counts Two and Three of Bayer's Counterclaims
and Bayer's Request for Attorneys' Fees. (D.I. 31).
The court has jurisdiction over this matter pursuant to 28
U.S.C. §§ 1331 and 1338(a). For the reasons
discussed below, CSL's motion to dismiss is granted in
part and dismissed in part.
The Parties' Relationship
Supply Agreement is governed by New York law and terminated
by its own terms on December 31, 2017. (D.I. 32-1 at
§§ 7.1, 11.2). Under the Supply Agreement, Bayer
agreed to manufacture and supply CSL with two human
recombinant Factor VIII products that CSL sold under the
trade names "Helixate" and "Iblias."
(D.I. 27, Counterclaims at ¶¶ 7-8). Bayer
concurrently made and sold the same products for itself under
the trade names "Kogenate" and
"Kovaltry." (Id.). In May 2016, CSL
obtained FDA approval of its own human recombinant Factor
VIII product that competes with Helixate and is sold under
the trade name "Afstyla." (Id. at
¶¶ 34, 68).
Relevant Terms of the Supply Agreement
counterclaims that CSL seeks to dismiss essentially allege
that CSL was obligated to purchase and sell as much Helixate
as the market would buy. The Supply Agreement contains two
provisions relevant to these claims. First, there is a
"minimum purchase obligation," found in Section
184.108.40.206 of the Supply Agreement, which states: "For
Calendar Year 2011 and beyond, CSL's minimum purchase
obligation will be sixty percent (60%) of the previous
Calendar Year's actual purchase." (D.I. 32-1 at
§ 220.127.116.11). Second, there is a mechanism set forth in
Section 2.3.1 by which CSL provides Bayer, on a monthly
basis, rolling forecasts that govern CSL's future orders.
(Id. at § 2.3.1). The first three months of
each forecast are considered a "firm order."
second three months (i.e., months four through six) cannot
change by more than 15% when those months become firm orders.
(Id.). Specifically, Section 2.3.1 states, in
CSL shall provide Bayer with a rolling twelve (12) month
forecast of its requirements of Product broken down by
calendar months..... The first three (3) calendar months of
this forecast shall represent a firm order .... The second
three (3) calendar months of this forecast may not change
more than plus or minus fifteen percent (15%) from the
immediately preceding twelve (12) month forecast when the
second three (3) months of the immediately preceding forecast
are upgraded to the status of a firm order.
Bayer has requested attorneys' fees in its Prayer for
Relief. (D.I. 27 at 37). Section 9.1 of the Supply Agreement
governs attorneys' fees and provides, at least in some
circumstances, that a prevailing party is entitled to recover
its litigation costs if the litigation involves a request for
equitable relief. Specifically, Section 9.1 states:
Except in cases where a party seeks equitable relief in a
court of competent jurisdiction to avoid irreparable injury,
the parties hereto shall first attempt to settle by good
faith negotiation any dispute, controversy or claim arising
out of or relating to this Agreement ("Dispute").
In the event that a party seeks such equitable relief, the
prevailing party shall be entitled to recover from the
non-prevailing party all reasonable out-of-pocket costs and
expenses incurred in such litigation.
(D.I. 32-1 at §9.1).
STANDARD OF REVIEW
Rule 12(b)(6), a party may move to dismiss a complaint for
failure to state a claim upon which relief can be granted.
Fed.R.Civ.P. 12(b)(6). To survive the motion to dismiss, the
complaint must contain sufficient factual matter "to
state a claim to relief that is plausible on its face."
Ashcroft v. Iqbal,556 U.S. 662, 677-78 (2009)
(quoting Bell Atl. Corp. v. Twombly,550 U.S. 544,
570 (2007)). The factual allegations do not have to be
detailed, but they must provide more than labels,
conclusions, or a "formulaic recitation" of the
claim elements. Twombly, 550 U.S. at 555. In
assessing the plausibility of a claim, the court must accept
all well-pleaded factual allegations in the complaint as true
and draw all reasonable inferences in favor of the plaintiff.
In re Rockefeller Ctr. Prop., Inc. Sec. Litig., 311
F.3d 198, 215 (3d Cir. 2002). The court's review is
limited to the ...