Contract analysis

I. Purpose This memorandum establishes a comprehensive tracking protocol for the appeal period following entry of Final Judgment in Penterra Pharmaceuticals Corp. v. Vantage Medical Distribution, LLC, Docket No. 2184-CV-01537-BLS, in the Superior Court of Massachusetts, Business Litigation Session, Suffolk County. The purpose of this protocol is to ensure that the engagement team identifies, calendars, and monitors a

II. Procedural History and Judgment Summary A. The Court's Memorandum of Decision and Order On July 15, 2022, the Honorable Diane L. Costigan, Justice of the Superior Court, Business Litigation Session, Suffolk County, issued a Memorandum of Decision and Order on the parties' cross-motions for summary judgment. The decision resolved the central dispute in this litigation — namely, the geographic scope of Vantage's di

1. Territorial Scope of the EDA. The court declared that the "Territory" under the EDA is limited to the six New England states enumerated in Exhibit A to the EDA: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. The court found that the contractual language was unambiguous and that Exhibit A provided a definitive and exclusive listing of the states comprising the Territory.

2. The Kapoor Email. The court held that the January 12, 2018 email from Steven Kapoor (Penterra's Vice President, Commercial Operations) to Donald R. Farnham (Vantage's Managing Member and Chief Executive Officer) did not constitute "prior written consent" under Section 2.3 of the EDA, nor did it operate as an amendment to Exhibit A under Section 13.1 of the EDA. The court noted that Section 2.3 required prior writt

3. Course-of-Dealing Argument. The court further held that Vantage's course-of-dealing argument — which was premised on Penterra's alleged acquiescence over a period of approximately three years to Vantage's distribution activities in New York, New Jersey, and Pennsylvania — was barred by the integration clause (Section 14.8 of the EDA) and the written-amendment requirement (Section 13.1). In reaching this conclusion

4. Vantage's Counterclaims. All three of Vantage's counterclaims — (a) breach of contract, (b) breach of the implied covenant of good faith and fair dealing, and (c) promissory estoppel — were dismissed on the merits. The court found that because the EDA unambiguously limited the Territory to the six New England states, Penterra's decision to engage alternative distributors for the tri-state area (New York, New Jerse

III. Applicable Appeal Period A. Governing Rule Under Massachusetts Rules of Appellate Procedure, Rule 4(a), a notice of appeal must be filed within thirty (30) days after the date of entry of the judgment or order appealed from. This rule is jurisdictional in nature; failure to file a timely notice of appeal deprives the appellate court of jurisdiction over the appeal. See Adoption of Zak, 87 Mass. App. Ct. 540, 543

1. Starting Point. The thirty-day period begins to run on the day after entry of the judgment. The judgment was entered on August 5, 2022, so day one of the appeal period is August 6, 2022.

2. Thirty-Day Calculation. Counting thirty days from August 5, 2022 (i.e., beginning the count on August 6), the thirtieth day falls on September 4, 2022.

3. Weekend and Holiday Extension. September 4, 2022 is a Sunday. Furthermore, September 5, 2022 is Labor Day, a legal holiday recognized under Massachusetts law. Under Massachusetts Rules of Appellate Procedure, Rule 14(a), and Massachusetts Rules of Civil Procedure, Rule 6(a), when the last day of a period falls on a Saturday, Sunday, or legal holiday, the period runs until the end of the next day that is not a Satu

1. Motion for Extension of Time to File Notice of Appeal. Under Massachusetts Rules of Appellate Procedure, Rule 4(c), the trial court may, upon a showing of excusable neglect or good cause, extend the time for filing a notice of appeal for a period not to exceed thirty (30) days from the expiration of the original appeal period (or its extension under Rule 4(a)). This means that, in the most extreme scenario, if Van

2. Post-Judgment Motions Tolling the Appeal Period. No post-judgment motion — including, without limitation, a motion to reconsider, a motion for a new trial under Massachusetts Rules of Civil Procedure, Rule 59, or a motion for relief from judgment under Massachusetts Rules of Civil Procedure, Rule 60 — has been filed by Vantage as of the date of this memorandum. Were such a motion to be filed, it could toll the app

3. Present Status. As of August 8, 2022, no tolling event has occurred. The appeal period is running, and the operative deadline remains September 6, 2022 (accounting for the weekend and holiday extension). We will continue to monitor the docket for any post-judgment motion or motion for extension of time that could alter this calculation.

IV. Calendar and Monitoring Protocol A. Key Dates The following table sets forth the key dates for the appeal-period monitoring protocol. Each date is accompanied by a description of the action item or event associated with it. The engagement team should treat this table as the master schedule for appeal-period tracking. B. Monitoring Responsibilities The following assignments govern docket monitoring during the appe

V. Contingency: If Vantage Files a Notice of Appeal Although we believe the court's Memorandum of Decision and Order is well-reasoned and should withstand appellate scrutiny, we must be prepared for the possibility that Vantage or its counsel at HSP will file a notice of appeal. The following steps should be taken in the event that occurs. A. Immediate Steps If a notice of appeal is filed by Vantage or by HSP on Vant

1. Internal Notification. Immediately notify Linda Osei (Responsible Partner) and Priya Anand (Billing Partner) by telephone and email. The notification should include a copy of the notice of appeal, if available from the electronic docket, and should identify the date the notice was filed, the appellate court designation, and the specific judgment or order being appealed.

2. Client Notification. Notify Jennifer Chao at Penterra by telephone and follow-up email on the same business day. The telephone call should provide an initial summary of the filing and its implications; the follow-up email should include a copy of the notice of appeal and a brief written summary of next steps. The communication should advise Ms. Chao that the judgment is now subject to appellate review and that Pen

3. Review of the Notice of Appeal. Obtain and review the notice of appeal to identify the specific judgment or order being appealed and the appellate court designation. Vantage's appeal would be taken to the Massachusetts Appeals Court, unless Vantage were to seek direct appellate review by the Supreme Judicial Court under G.L. c. 211A, § 10 (which is discretionary and granted only in rare circumstances involving que

1. Preliminary Assessment of Appellate Issues. Prepare a preliminary assessment of the likely appellate issues that Vantage may raise. For reference, the Post-Decision Analysis Memorandum dated July 20, 2022, prepared by Hannah Brinkley, identifies several potential grounds that Vantage might advance on appeal, including: (a) challenges to the court's application of the written-modification clause doctrine, particula

2. Engagement Decision. Determine whether Penterra wishes Calderwood & Harkness LLP to continue representation on appeal or whether appellate specialist counsel should be engaged. This decision should be discussed with Jennifer Chao promptly. If appellate specialist counsel is to be retained, Linda Osei should provide recommendations and facilitate the transition. If Calderwood & Harkness LLP is to handle the appeal,

3. Budget Revision. Revise the matter budget to account for appellate proceedings. The original estimated budget of $750,000 to $1,200,000 was scoped through trial in the Superior Court and did not encompass appellate proceedings. An appeal to the Massachusetts Appeals Court, including briefing, oral argument preparation, and oral argument, would likely require an additional estimated budget in the range of $150,000

1. Record Appendix. Under Massachusetts Rules of Appellate Procedure, Rule 18, the appellant is responsible for preparing the record appendix. However, the appellee (Penterra) has the right to supplement the appendix and should carefully review the appellant's designation of record materials to ensure that all relevant documents are included.

2. Key Record Items. The following items are likely to be included in the record appendix and should be readily accessible in the matter file: • The Exclusive Distribution Agreement dated July 1, 2017, including all exhibits (in particular, Exhibit A — Territory Definition, which lists the six New England states); • The January 12, 2018 email from Steven Kapoor (Penterra VP, Commercial Operations) to Donald R. Farnha

3. Coordination with the Clerk. Patrick Gallagher should contact the Clerk's office for the Business Litigation Session to confirm the procedures for record assembly and to ensure that all docket entries and filings are accurately reflected in the record.

VI. Judgment Preservation Considerations A. Ensuring Enforceability of the Declaratory Judgment The declaratory judgment entered in this case establishes, as a matter of law, that Vantage's exclusive territory under the EDA is limited to the six New England states enumerated in Exhibit A to the EDA: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Upon the judgment becoming final and non-a

VII. Document Retention All pleadings, briefs, discovery materials (including deposition transcripts, interrogatory responses, document productions, and expert reports, if any), correspondence, internal and external communications, work product memoranda, research memoranda, and the court's orders and judgments should be retained in the matter file (matter no. 1018-00007) in accordance with Calderwood & Harkness LLP'

VIII. Update Log The following log tracks all updates to this memorandum throughout the appeal monitoring period. Entries will be added as docket checks are conducted and new information becomes available. Post-Deadline Notation — September 6, 2022: Docket for Docket No. 2184-CV-01537-BLS reviewed via MassCourts eFiling at close of business on September 6, 2022. No notice of appeal, motion for extension of time to fi

IX. Conclusion and Recommendation The appeal deadline — including the weekend and holiday extension under Massachusetts Rules of Appellate Procedure, Rule 14(a) and Massachusetts Rules of Civil Procedure, Rule 6(a) — passed at the close of business on September 6, 2022 without Vantage Medical Distribution, LLC or its counsel at Hargrove, Sinclair & Polk LLP filing a notice of appeal, a motion for extension of time to

1. Client Notification. Linda Osei should send a brief communication to Jennifer Chao, General Counsel of Penterra Pharmaceuticals Corp., confirming the finality of the judgment. The communication should advise Ms. Chao that: (a) the appeal period has expired without any filing by Vantage; (b) the Final Judgment is now final and non-appealable; (c) Penterra may proceed with its commercial plans for the tri-state terr

2. Matter Closing. This matter is now ready for closing in accordance with Calderwood & Harkness LLP's matter-closing procedures. A Matter Closing Memorandum should be prepared and circulated for review and approval by Linda Osei and Priya Anand. This Judgment Preservation and Appeal-Period Tracking Memorandum should be filed in the matter closing file alongside the Matter Closing Memorandum and the other key documen

3. Final Billing. Priya Anand should coordinate with the billing team to ensure that all outstanding time entries and disbursements have been posted and that a final invoice is prepared and sent to Penterra. This memorandum will remain a part of the permanent matter file for reference purposes. Prepared by: ________________________________________ Patrick Gallagher Working Associate Calderwood & Harkness LLP Reviewed