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DEPOSITION EXAMINATION OUTLINE
Donald R. Farnham Managing Member & Chief Executive Officer Vantage Medical Distribution, LLC
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I. PRELIMINARY NOTES AND EXAMINATION STRATEGY
A. Overall Objectives
The overarching goal of this deposition is to establish, through Mr. Farnham's own testimony, the following five critical propositions that form the backbone of Penterra's breach-of-contract claim and its opposition to Vantage's counterclaims:
1.  The Territory under the Exclusive Distribution Agreement ("EDA") was limited to the six New England states as defined in Exhibit A. Farnham must be compelled to acknowledge that the Territory encompasses only Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont, and that no other states — including New York, New Jersey, and Pennsylvania — appear in Exhibit A or elsewhere in the executed EDA.
2.  No signed written amendment to Exhibit A was ever executed. Section 13.1 of the EDA requires that any amendment, modification, or waiver be set forth in a written instrument signed by both parties. We anticipate that Farnham will concede that no such instrument exists, which is fatal to Vantage's position that the Territory was expanded to include the tri-state area.
3.  The January 12, 2018 email from Steven Kapoor to Farnham (the "Kapoor Email") did not constitute "prior written consent" under Section 2.3 or an "amendment" under Section 13.1. The Kapoor Email is the centerpiece of Vantage's defense and its counterclaims. It must be carefully dissected. The language of the email — "definitely open to exploring expansion," "once your New England footprint is fully ramped," "Let's circle back mid-year" — is aspirational, conditional, and forward-looking. It does not grant consent, authorize distribution, or amend the Territory. Farnham must be pressed to address each operative phrase and concede, or at minimum be pinned to an interpretation that can be contradicted by the plain language.
4.  Vantage knowingly commenced tri-state shipments without formal authorization. Farnham must be examined regarding the decision-making process that led Vantage to begin shipping Oncalaris® to customers in New York, New Jersey, and Pennsylvania beginning on or about September 14, 2020 — more than two and a half years after the Kapoor Email and without any intervening written consent from Penterra. The timeline gap itself is damaging. The absence of any notification to Penterra is more so.
5.  Vantage's damages theory is speculative and unsupported. The $35 million counterclaim figure first appeared in the March 22, 2021 response letter from Vantage's counsel, Kenneth M. Rourke of Hargrove, Sinclair & Polk LLP. We need to pin Farnham down on the methodology, the assumptions, the time period, and the categories of damages underlying this figure to demonstrate at summary judgment that the figure is speculative, conclusory, and unsupported by competent evidence.
B. Tone and Approach
The examination should begin with background questioning designed to build rapport and establish a foundation of uncontroversial testimony. This serves two purposes: it acclimates the witness to the rhythm of the deposition, reducing the likelihood that he will be excessively guarded during the critical middle portions; and it locks in foundational facts — Farnham's role, his sophistication, his experience with exclusive distribution agreements — that will be difficult to walk back later.
After the background sections, the examination will move to the core contract provisions. This is a document-intensive portion. Each key provision should be read into the record and Farnham should be asked to confirm his understanding at the time of execution. The goal is to establish that Farnham is a sophisticated commercial actor who understood the terms he signed, including the territorial limitation, the written-consent requirement, and the anti-oral-modification clause.
The most contentious topics — the Kapoor Email interpretation and the decision to commence unauthorized shipments — should be addressed in the middle of the examination when the deponent is sufficiently warmed up but not yet fatigued or overly defensive. The Kapoor Email section is the heart of this deposition and should be conducted with precision. Avoid argumentative questions; let the language of the email speak for itself through carefully sequenced questions that isolate each phrase.
The damages section should come toward the end, as it is likely to be more adversarial and may prompt objections from Vantage's counsel. We want the earlier, more substantive admissions already on the record before we get to damages.
C. Key Documents to Mark as Exhibits
The following documents should be prepared in advance and marked as exhibits during the deposition. Copies should be provided to the court reporter, Vantage's counsel, and the witness in accordance with standard practice:
•  Exhibit A to the EDA (Territory Definition — the six New England states: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont)
•  The full Exclusive Distribution Agreement dated July 1, 2017, including in particular Section 2.1 (Grant of Exclusive Territory), Section 2.3 (Limitation), Section 5.2 (Minimum Purchase Commitment), Section 13.1 (Amendments), and Section 14.8 (Entire Agreement / Integration Clause)
•  January 12, 2018 email from Steven Kapoor to Donald Farnham (the "Kapoor Email")
•  Any responsive email from Farnham to Kapoor following the January 12, 2018 email (review production to confirm whether one exists; if not, the absence itself is significant)
•  Vantage internal documents regarding tri-state expansion plans (as identified in Vantage's document production, Bates Nos. VANTAGE-003217 through VANTAGE-003389)
•  Vantage shipping and sales records for the tri-state area (September 2020 through March 2021)
•  March 8, 2021 cease-and-desist letter from Jennifer Chao (General Counsel, Penterra) to Donald Farnham
•  March 22, 2021 response letter from Kenneth M. Rourke (Hargrove, Sinclair & Polk LLP) to Jennifer Chao
All exhibits should be tabbed and organized in a binder for ease of reference during the examination.
D. Coordination Note
Steven Kapoor's deposition is scheduled for November 2, 2021. It is essential that this deposition of Farnham be used to pin down Vantage's version of communications with Kapoor before Kapoor testifies. Any inconsistencies between Farnham's account of the January 11, 2018 conversation and Kapoor's recollection will be valuable, both for impeachment purposes and for summary judgment. Similarly, Rachel Mendez (Director of Distribution & Logistics at Penterra) is scheduled for November 19, 2021, and Brian Kopec (Outside Sales Director at Vantage) is scheduled for December 7, 2021. The Farnham deposition should serve as the anchor against which all subsequent testimony is measured.
II. BACKGROUND AND FOUNDATION
A. Personal Background
Begin with standard background questions to establish the deponent's identity, qualifications, and role within Vantage. These questions are non-controversial but essential for the record and for setting the stage.
Suggested lines of questioning:
1.  Please state your full name for the record.
2.  What is your current business address? (Expected answer: 75 Cabot Road, Suite 310, Medford, Massachusetts 02155.)
3.  What is your current title at Vantage Medical Distribution, LLC? (Expected answer: Managing Member and Chief Executive Officer.)
4.  How long have you held that title?
5.  Mr. Farnham, could you describe your educational background for me? Where did you attend college? Did you receive any graduate degrees?
6.  Before founding Vantage, where were you employed? (Note: Farnham is believed to be a former executive at a national pharmaceutical wholesaler. We need to identify the company — likely Greaves & Co., Northgate Enterprises, or Northpoint & Co. — the specific role he held, and when he departed to found Vantage. This is important to establish his sophistication in the pharmaceutical distribution industry and his familiarity with exclusive territory concepts.)
7.  What was your title at that company?
8.  How long were you employed there?
9.  What were your principal responsibilities?
10.  Why did you leave that position?
11.  When did you found Vantage Medical Distribution, LLC? (Expected answer: 2009.)
12.  What prompted you to start Vantage?
13.  Since founding Vantage, have you served in any other professional capacity outside of Vantage — for example, on any boards of directors, trade association committees, or advisory panels?
14.  As CEO of Vantage, what are your day-to-day responsibilities? Do you oversee sales? Operations? Finance? Regulatory compliance?
15.  Who reports directly to you? (Expected answer: Lisa Petrangelo, Chief Operating Officer, and Brian Kopec, Outside Sales Director, among others.)
16.  What are Ms. Petrangelo's principal responsibilities?
17.  What are Mr. Kopec's principal responsibilities?
B. Vantage Corporate Overview
The purpose of this section is to establish the nature, scale, and scope of Vantage's business, and critically, the significance of the Penterra relationship to Vantage's overall revenue.
Suggested lines of questioning:
1.  Vantage Medical Distribution, LLC — is that a Massachusetts limited liability company? (Expected answer: Yes.)
2.  How would you describe the nature of Vantage's business in general terms?
3.  Would it be fair to say that Vantage is a regional specialty pharmaceutical distributor focused on hospital and clinic-based oncology and immunology products in the northeastern United States? (Expected answer: Yes, or substantially similar.)
4.  What was Vantage's approximate total revenue for fiscal year 2021? (Expected answer: Approximately $148 million.)
5.  Of that approximately $148 million, how much revenue derived from the distribution of Penterra products? (Expected answer: Approximately $67 million.)
6.  So, approximately 45.3% of Vantage's total revenue comes from Penterra products — is that roughly correct?
7.  Would you agree that the Penterra relationship is Vantage's single largest source of revenue?
8.  Does Vantage hold exclusive distribution agreements with other pharmaceutical manufacturers? (This question is important to establish that Farnham is familiar with the concept of exclusive territory provisions and the contractual mechanics that govern them.)
9.  Without asking you to breach any confidentiality obligations, can you identify the other manufacturers with whom Vantage has exclusive distribution agreements?
10.  In those other agreements, is the distribution territory typically defined in an exhibit or schedule attached to the agreement?
11.  Have any of those other agreements been amended to expand the territory? If so, how was the amendment effected — by a signed written amendment?
12.  How many employees does Vantage currently have?
13.  Could you briefly describe the organizational structure of the company?
C. Prior Deposition and Litigation Experience
This section establishes the deponent's familiarity with the deposition process and his preparation for this particular deposition.
Suggested lines of questioning:
1.  Mr. Farnham, have you ever been deposed before?
2.  Have you ever been a party to litigation before this case — either as a plaintiff or a defendant?
3.  If so, what was the nature of that litigation, and in what court?
4.  In preparation for today's deposition, have you consulted with your attorney, Kenneth M. Rourke of Hargrove, Sinclair & Polk LLP?
5.  When did you meet with Mr. Rourke to prepare?
6.  How long did you spend preparing?
7.  Did you review any documents in preparation for today's deposition? If so, which ones?
8.  Did anyone other than Mr. Rourke assist you in preparing for this deposition?
9.  Do you understand the ground rules that we went over at the beginning of this deposition — that you are under oath, that you should wait for the entire question before answering, and that if you do not understand a question, you should ask me to rephrase it?
III. NEGOTIATION AND EXECUTION OF THE EXCLUSIVE DISTRIBUTION AGREEMENT
A. Pre-Agreement Discussions
This section is designed to establish the genesis of the Penterra-Vantage relationship and, critically, what territory was discussed during negotiations. If Farnham acknowledges that the tri-state area was discussed but not included in the final agreement, that is powerful evidence that the exclusion was intentional. If Farnham claims the tri-state area was never discussed, it undermines any argument that there was a contemporaneous understanding that the territory would eventually be expanded.
Suggested lines of questioning:
1.  Mr. Farnham, when did you first have discussions with Penterra Pharmaceuticals about a potential distribution relationship?
2.  Who at Penterra did you speak with during those initial discussions? (Expected: Steven Kapoor, VP Commercial Operations, and/or Rachel Mendez, Director of Distribution & Logistics.)
3.  Did you speak with anyone else at Penterra during the negotiation period?
4.  How many conversations or meetings did you have with Penterra personnel before the Exclusive Distribution Agreement was signed?
5.  During those negotiations, what territory was discussed?
6.  Were the states of New York, New Jersey, or Pennsylvania ever discussed as potential components of the distribution territory during the pre-execution negotiations?
7.  If yes: What was said? Who raised it? What was Penterra's response?
8.  If no: So the only territory that was discussed and ultimately agreed upon was the six New England states — Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont?
9.  Were you aware at the time of negotiations that Penterra had other regional distributors covering other parts of the United States?
10.  Were you aware that Penterra also maintained relationships with two national specialty pharmacy partners?
11.  Did Vantage propose a larger territory than the six New England states at any point during negotiations? If so, what was Penterra's response to that proposal?
12.  Who drafted the Exclusive Distribution Agreement? Was it drafted by Penterra's counsel or by Vantage's counsel? (This is relevant to any future dispute over contra proferentem.)
13.  Were there multiple drafts exchanged between the parties before the final version was executed?
14.  Did Vantage's counsel review the EDA before you signed it? If so, who was that counsel?
B. Execution of the EDA
At this point, mark the full Exclusive Distribution Agreement as an exhibit and walk Farnham through the execution.
Suggested lines of questioning:
1.  I am going to hand you what we have marked as Exhibit 1. Do you recognize this document?
2.  Can you identify it for the record? (Expected: The Exclusive Distribution Agreement between Penterra Pharmaceuticals Corp. and Vantage Medical Distribution, LLC.)
3.  Is that your signature on the last page, on behalf of Vantage Medical Distribution, LLC, in your capacity as Managing Member?
4.  And the effective date of this agreement is July 1, 2017 — is that correct?
5.  What is the term of this agreement? (Expected: Five years, expiring June 30, 2022, with two successive one-year auto-renewal options subject to 180 days' written notice of non-renewal.)
6.  What products are covered by this agreement? (Expected: Oncalaris® (pegvisomant-axel), 20 mg and 40 mg vials; Renuvesta® (cilosporin-beta), 5 mg capsules.)
7.  Were those the only Penterra products that Vantage was authorized to distribute under this agreement?
8.  At the time you signed this agreement, did you understand its terms?
9.  Did you read it before you signed it?
10.  Did you have any questions about any of its provisions at the time of execution? If so, what questions did you have, and how were they resolved?
C. Understanding of Exhibit A — Territory Definition
This section is foundational and must be conducted with deliberate care. Farnham must be locked into acknowledging the plain language of Exhibit A.
Suggested lines of questioning:
1.  I am going to hand you what we have marked as Exhibit 2. Do you recognize this document?
2.  This is Exhibit A to the Exclusive Distribution Agreement — the Territory Definition — correct?
3.  Let me read the operative language of Exhibit A into the record: "The states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont (collectively, the 'New England States')." Did I read that correctly?
4.  Mr. Farnham, did you review Exhibit A before you signed the Exclusive Distribution Agreement on July 1, 2017?
5.  At the time you signed, did you understand that the Territory — as that term is defined in the EDA — was limited to the six states listed in Exhibit A?
6.  Does Exhibit A mention the state of New York?
7.  Does Exhibit A mention the state of New Jersey?
8.  Does Exhibit A mention the state of Pennsylvania?
9.  At the time you signed the EDA, did you have any side agreement, side letter, handshake deal, or oral understanding with anyone at Penterra — Mr. Kapoor, Ms. Mendez, or anyone else — that the Territory would include any states beyond those listed in Exhibit A?
10.  Did Vantage's counsel review Exhibit A before you signed the EDA? If so, did counsel raise any concerns about the scope of the territory?
D. Key Contractual Provisions
This section systematically walks Farnham through each of the critical provisions of the EDA. Each provision should be read into the record in its entirety (or its relevant portion), and Farnham should be asked to confirm his understanding. The goal is to establish an unambiguous record of Farnham's awareness of the contractual restrictions he agreed to.
1. Section 2.1 — Grant of Exclusive Territory
Suggested lines of questioning:
1.  Mr. Farnham, I am going to direct your attention to Section 2.1 of the EDA, which is entitled "Grant of Exclusive Territory." Do you see that?
2.  Section 2.1 provides, in relevant part, that Penterra grants Vantage the exclusive right to distribute the Products "within the Territory, as defined in Exhibit A." Do you see that language?
3.  Did you understand at the time you signed the EDA that the exclusive right you were being granted was limited to the Territory as defined in Exhibit A — that is, the six New England states?
4.  Did you understand that the grant of exclusivity did not extend beyond those six states?
2. Section 2.3 — Limitation
Suggested lines of questioning:
1.  Now let me direct your attention to Section 2.3, which is entitled "Limitation." Do you see that?
2.  I am going to read Section 2.3 into the record: "Distributor shall not actively solicit orders for, or deliver, the Products outside the Territory without Supplier's prior written consent." Did I read that correctly?
3.  Mr. Farnham, what did you understand this provision to mean at the time you signed the EDA?
4.  What does the phrase "prior written consent" mean to you?
5.  In your understanding, does "prior written consent" require something more than a casual email expressing openness to a future conversation?
6.  Did you ever receive any document from Penterra that you understood to constitute "prior written consent" to distribute Products outside the Territory as defined in Exhibit A?
7.  If yes: What document? When? From whom? (If Farnham identifies the Kapoor Email, that will be addressed at length in Section IV below. If he identifies any other document, explore it immediately.)
8.  If no: So, as of the date Vantage first shipped Products to a customer in New York, New Jersey, or Pennsylvania, you had not received Penterra's prior written consent to do so — is that your testimony?
3. Section 13.1 — Amendments
Suggested lines of questioning:
1.  Please turn to Section 13.1 of the EDA, entitled "Amendments." Do you see that?
2.  I will read it into the record: "No amendment, modification, or waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by both parties." Did I read that correctly?
3.  Mr. Farnham, have you ever signed a written amendment to the EDA?
4.  To your knowledge, has any officer, executive, or authorized representative of Penterra ever signed a written amendment to the EDA?
5.  Has Exhibit A — the Territory Definition — ever been amended by a written instrument signed by both Penterra and Vantage?
6.  So no signed written amendment to the Territory has ever been executed — is that correct?
4. Section 14.8 — Entire Agreement / Integration Clause
Suggested lines of questioning:
1.  Please turn to Section 14.8, entitled "Entire Agreement." Do you see that?
2.  I will read it into the record: "This Agreement, including all Exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, or agreements relating thereto, whether written or oral." Did I read that correctly?
3.  Did you understand this clause when you signed the EDA?
4.  Did you understand that this clause meant that any prior discussions, representations, or understandings about the distribution territory — to the extent they were not reflected in the written agreement and its exhibits — were superseded and had no legal effect?
5.  Are you aware of any other written agreement between Penterra and Vantage relating to the distribution territory, other than the EDA and Exhibit A?
5. Section 5.2 — Minimum Purchase Commitment
Suggested lines of questioning:
1.  Please turn to Section 5.2, entitled "Minimum Purchase Commitment." Do you see that?
2.  Section 5.2 provides that Vantage shall purchase a minimum of $9.5 million of Oncalaris® per year at wholesale acquisition cost ("WAC"). Is that correct?
3.  Were you aware of this minimum purchase commitment at the time you signed the EDA?
4.  Can you tell me Vantage's actual purchases of Oncalaris® in each fiscal year since the EDA took effect?
5.  (If Farnham cannot recall, present the figures from Vantage's own records:)
6.  So Vantage exceeded the $9.5 million annual minimum in each year of the agreement — is that correct?
7.  Mr. Farnham, do you attribute any portion of the increase in Oncalaris® purchases from FY 2018 to the present to Vantage's distribution activities in the tri-state area — New York, New Jersey, and Pennsylvania?
8.  If yes: What portion?
9.  Can you identify any purchases that were made specifically to fulfill orders from tri-state customers?
IV. THE JANUARY 12, 2018 KAPOOR EMAIL
A. Context and Circumstances
This is the single most important section of the deposition. The January 12, 2018 email from Steven Kapoor to Donald Farnham is the principal document upon which Vantage relies for its claim that Penterra authorized — or at minimum signaled its intent to authorize — tri-state distribution. The email must be examined word by word and phrase by phrase.
Before examining the email itself, establish the context of the communication that preceded it.
Suggested lines of questioning:
1.  I am going to hand you what we have marked as Exhibit 3. Do you recognize this document?
2.  This is an email dated January 12, 2018, from Steven Kapoor to you. Is that correct?
3.  Let me read it into the record in its entirety: "Don — good catching up yesterday. We're definitely open to exploring expansion into NY/NJ/PA once your New England footprint is fully ramped. Let's circle back mid-year and see where things stand." Did I read that correctly?
4.  Now, the email references "catching up yesterday." That would have been on or about January 11, 2018. Did you have a conversation with Mr. Kapoor on or about January 11, 2018?
5.  Was that a phone call, an in-person meeting, or some other form of communication?
6.  Where did that conversation take place? If a phone call, where were you when you took the call?
7.  Was anyone else present on your end? On Mr. Kapoor's end?
8.  How long did the conversation last?
9.  What was discussed during that conversation?
10.  Specifically, what was discussed about the possibility of Vantage distributing Penterra products in the tri-state area — New York, New Jersey, and Pennsylvania?
11.  Did you raise the topic, or did Mr. Kapoor?
12.  What exactly did Mr. Kapoor say about tri-state expansion during that conversation?
13.  What did you say in response?
14.  Did Mr. Kapoor make any commitments during that conversation?
15.  Did you make any notes of the January 11 conversation — handwritten notes, a memo, an email to a colleague summarizing the discussion, or anything else?
16.  If yes: Have those notes been produced in this litigation? (If not, request production immediately.)
17.  If no: So you have no contemporaneous written record of what was said during the January 11 conversation?
B. Farnham's Interpretation of the Email
This is the critical sequence of questions. The goal is to force Farnham to confront the actual language of the email and to either concede that it does not constitute consent or authorization, or to commit to an interpretation that is contradicted by the plain text.
Suggested lines of questioning:
1.  Mr. Farnham, when you received this email on January 12, 2018, what did you understand it to mean?
2.  Did you understand it to mean that Penterra was granting Vantage permission to distribute Oncalaris® or Renuvesta® in New York, New Jersey, or Pennsylvania?
3.  Let me direct your attention to the specific language. The email says Penterra is "open to exploring expansion." Does the phrase "open to exploring" mean the same thing as "we hereby authorize" or "we consent to"?
4.  Would you agree that "open to exploring" indicates a willingness to consider something, as opposed to a commitment to do it?
5.  The email says "expansion into NY/NJ/PA." Does the email say that Penterra is granting or has granted an expansion into those states?
6.  The email says "once your New England footprint is fully ramped." Do you see that?
7.  Is "once your New England footprint is fully ramped" a condition?
8.  What does "fully ramped" mean, in your understanding?
9.  Was Vantage's New England footprint "fully ramped" as of January 12, 2018?
10.  At any point after January 12, 2018, did you and Mr. Kapoor ever discuss whether Vantage's New England footprint had been "fully ramped" and, if so, by what metric?
11.  Did anyone at Penterra ever inform you that the condition — "once your New England footprint is fully ramped" — had been satisfied?
12.  The email says "Let's circle back mid-year and see where things stand." Do you see that?
13.  Does that language indicate that the matter of tri-state expansion was to be revisited at a later date?
14.  Does "let's circle back mid-year and see where things stand" suggest that no decision had been made as of January 12, 2018, and that the topic required further discussion?
15.  Did you "circle back" with Mr. Kapoor mid-year 2018 as the email suggested?
16.  If yes: What happened during that conversation? What was discussed? What, if anything, was agreed?
17.  If no: Why not?
18.  Mr. Farnham, looking at this email as a whole — does it contain any language granting Vantage the right to distribute Products outside the Territory?
19.  Does it contain the words "consent," "authorize," "approve," "permit," or any similar term?
20.  Is this email signed by Mr. Kapoor on behalf of Penterra Pharmaceuticals Corp.?
21.  Turning back to Section 2.3 of the EDA — which requires "Supplier's prior written consent" — do you contend that this email constitutes "prior written consent" within the meaning of Section 2.3?
22.  Turning to Section 13.1 — which requires any amendment to be "set forth in a written instrument signed by both parties" — do you contend that this email constitutes a signed amendment to Exhibit A?
C. Follow-Up Communications
This section is designed to establish the gap between the January 2018 Kapoor Email and the September 2020 commencement of tri-state shipments — a gap of approximately two years and eight months during which, we believe, there was no further written communication from Penterra authorizing tri-state distribution.
Suggested lines of questioning:
1.  Mr. Farnham, did you respond to Mr. Kapoor's January 12, 2018 email? (If a responsive email exists in the production, mark it as an exhibit and examine it. If no responsive email exists, the absence is significant.)
2.  If yes: I am going to hand you what we have marked as Exhibit 3A. Is this your response? What did you say?
3.  If no: You did not respond to this email at all?
4.  Between January 12, 2018, and September 2020, were there any further written communications — emails, letters, text messages, or otherwise — between you and Mr. Kapoor regarding the possibility of Vantage distributing Products in the tri-state area?
5.  Were there any oral communications — phone calls, in-person meetings, or otherwise — between you and Mr. Kapoor regarding tri-state expansion during that period?
6.  Were there any communications — written or oral — between you and anyone else at Penterra regarding tri-state expansion during that period? For example, Rachel Mendez?
7.  Mr. Farnham, at any point between January 12, 2018, and September 2020, did you send a written request to Penterra asking that Exhibit A be amended to include New York, New Jersey, or Pennsylvania?
8.  Did anyone at Penterra ever send you a written document — a letter, email, amendment, consent, or otherwise — that stated Vantage was authorized to distribute Penterra products in the tri-state area?
9.  Mr. Farnham, other than the January 12, 2018 Kapoor Email that we have been discussing, is there any other document that you rely upon as constituting Penterra's "prior written consent" under Section 2.3 of the EDA?
10.  Is the Kapoor Email the sole documentary basis for your position that Vantage was authorized to distribute Products in the tri-state area?
V. DECISION TO COMMENCE TRI-STATE DISTRIBUTION
A. Timeline and Decision-Making
This section establishes the circumstances under which Vantage began shipping Products into the tri-state area. The goal is to demonstrate that the decision was deliberate, was made without Penterra's knowledge or consent, and was undertaken despite Farnham's awareness of the contractual restrictions.
Suggested lines of questioning:
1.  Mr. Farnham, when did Vantage first ship Oncalaris® — or any other Penterra product — to a customer located in New York, New Jersey, or Pennsylvania?
2.  Penterra's records indicate that the first such shipment occurred on or about September 14, 2020. Does that date sound correct to you?
3.  Who made the decision to begin shipping Products to customers in the tri-state area? Was that your decision, Mr. Farnham?
4.  Was anyone else involved in making that decision? Did you discuss it with Lisa Petrangelo, your Chief Operating Officer?
5.  Did you discuss it with Brian Kopec, your Outside Sales Director?
6.  Was the decision to commence tri-state distribution discussed at any meeting of Vantage's management team?
7.  Was the decision approved by Vantage's board of managers or any other governing body?
8.  Are there any minutes, memoranda, emails, or other documents reflecting the decision to begin tri-state distribution?
9.  Before commencing tri-state shipments, did you consult with legal counsel? If so, whom? (If Farnham claims privilege, note the assertion for the record but respect the privilege.)
10.  At the time you made the decision to begin tri-state shipments, were you aware of Section 2.3 of the EDA — the provision we discussed earlier that prohibits distribution outside the Territory without Penterra's prior written consent?
11.  At the time you made the decision, had you received any written consent from Penterra authorizing distribution in the tri-state area?
12.  Did you notify Penterra in advance that Vantage intended to begin distributing Products in the tri-state area?
13.  If yes: When did you notify Penterra? How — by phone, email, letter? To whom?
14.  If no: Why did you not notify Penterra before beginning to distribute Products in states outside the Territory defined in Exhibit A?
15.  Were you concerned that Penterra might object to tri-state distribution?
16.  If you believed you already had authorization from Penterra, why would you not notify them as a courtesy or for logistical purposes?
B. Course-of-Dealing Argument
Vantage's answer and counterclaims allege that Penterra's "course of dealing" — including its alleged failure to object to Vantage shipments into New York beginning in late 2019 — effected a modification of Exhibit A. This section explores the factual basis for that allegation.
Suggested lines of questioning:
1.  Mr. Farnham, Vantage has alleged in its counterclaims that Penterra's "course of dealing" effectively expanded the Territory to include New York, New Jersey, and Pennsylvania. Are you familiar with that allegation?
2.  Let me ask you about the factual basis. Vantage's answer refers to shipments into New York that occurred in "late 2019." Can you tell me about those shipments?
3.  How many shipments into New York occurred in late 2019?
4.  What was the volume of those shipments?
5.  Who were the customers?
6.  Were those shipments intentional — meaning Vantage deliberately targeted New York customers — or were they incidental, such as fulfilling an order from a customer who turned out to be located across a state line?
7.  How do you know that Penterra was aware of those shipments?
8.  Did anyone at Penterra expressly acknowledge those shipments?
9.  Did anyone at Penterra expressly approve those shipments?
10.  Mr. Farnham, is there a difference, in your understanding, between Penterra not objecting to something and Penterra affirmatively consenting to it?
11.  Section 13.1 of the EDA requires that any amendment be set forth in a written instrument signed by both parties. Are you aware of any legal principle that permits silence or inaction alone to override a contractual requirement for a signed written amendment?
12.  In the tri-state area, did Vantage actively solicit orders from hospitals, clinics, and other potential customers, or did those customers come to Vantage on their own? (Note: Section 2.3 prohibits both "actively solicit[ing] orders for" and "deliver[ing]" Products outside the Territory.)
13.  Who at Vantage directed the tri-state sales effort?
14.  Was that Brian Kopec?
15.  Did Mr. Kopec report to you regarding tri-state sales activities?
16.  Did you direct Mr. Kopec to solicit orders in the tri-state area?
C. Scope of Tri-State Activity
This section quantifies the scale of Vantage's unauthorized tri-state distribution to establish both the materiality of the breach and the foundation for the damages questions that will follow.
Suggested lines of questioning:
1.  Mr. Farnham, can you identify the specific hospitals, oncology clinics, and other customers in New York, New Jersey, and Pennsylvania to which Vantage shipped Oncalaris® or Renuvesta® between September 2020 and March 2021?
2.  How many customers in total?
3.  How many individual shipments were made during that period?
4.  What was the total revenue Vantage generated from tri-state sales during that period? (Penterra's analysis of Vantage's production documents indicates approximately $6.4 million.)
5.  Does approximately $6.4 million sound correct to you?
6.  What was Vantage's gross margin on those tri-state sales?
7.  What was Vantage's net margin?
8.  Did Vantage hire additional sales personnel specifically to serve the tri-state market?
9.  Did Vantage open any satellite offices or distribution centers in New York, New Jersey, or Pennsylvania?
10.  Did Vantage enter into contracts or agreements with any tri-state customers for the ongoing supply of Penterra products?
11.  If so, are those contracts still in effect?
12.  Were any tri-state customers promised exclusivity or other special terms?
VI. PENTERRA'S CEASE-AND-DESIST AND VANTAGE'S RESPONSE
A. March 8, 2021 Cease-and-Desist Letter
Suggested lines of questioning:
1.  I am going to hand you what we have marked as Exhibit 6. Do you recognize this document?
2.  This is a letter dated March 8, 2021, from Jennifer Chao, General Counsel of Penterra Pharmaceuticals Corp., addressed to you. Is that correct?
3.  Did you receive this letter?
4.  When did you receive it?
5.  What was your reaction upon reading it?
6.  Did you discuss this letter with anyone at Vantage after you received it? (Expected: Lisa Petrangelo, Brian Kopec.)
7.  What was said during those discussions?
8.  Upon receiving this cease-and-desist letter, did Vantage cease its shipments to customers in the tri-state area?
9.  If not, why not?
10.  When, if ever, did Vantage stop shipping Products to the tri-state area?
11.  Were there any shipments to the tri-state area after March 8, 2021?
12.  If so, how many, and for how long did they continue?
B. March 22, 2021 Response Letter
Suggested lines of questioning:
1.  I am going to hand you what we have marked as Exhibit 7. Do you recognize this document?
2.  This is a letter dated March 22, 2021, from Kenneth M. Rourke of Hargrove, Sinclair & Polk LLP, addressed to Jennifer Chao. Is that correct?
3.  Did you authorize Mr. Rourke to send this letter on Vantage's behalf?
4.  Did you review this letter before it was sent?
5.  Did you have input into its content?
6.  The letter references a potential counterclaim by Vantage in the amount of $35 million for breach of contract and tortious interference. Do you see that?
7.  Mr. Farnham, what is the basis for the $35 million figure referenced in this letter?
8.  Did you provide Mr. Rourke with information that was used to calculate or estimate the $35 million?
9.  What methodology was used to arrive at that figure?
10.  What assumptions underlie that figure?
11.  Did anyone at Vantage — for example, a CFO, controller, or outside accountant — prepare any financial analysis in support of the $35 million figure?
C. Awareness of the Meridian Term Sheet
Suggested lines of questioning:
1.  Mr. Farnham, are you aware that Penterra executed a term sheet with Meridian National Distributors, Inc. on or about February 15, 2021, for the distribution of Oncalaris® in the tri-state area?
2.  Were you aware of the Meridian term sheet before you received the March 8, 2021 cease-and-desist letter?
3.  When did you first learn about Penterra's relationship with Meridian?
4.  How did you learn about it?
5.  Do you know Thomas Welliver, the President of Meridian National Distributors?
6.  Have you ever had any business dealings with Mr. Welliver or with Meridian?
7.  Mr. Farnham, did your awareness of the Meridian term sheet play any role in the decision to threaten counterclaims against Penterra?
8.  Is it fair to say that the timing of the Meridian term sheet — February 15, 2021 — and Penterra's cease-and-desist letter — March 8, 2021 — caused you to believe that Penterra was attempting to replace Vantage with Meridian in the tri-state area?
9.  But Mr. Farnham, under the EDA, Penterra had the right to appoint any distributor it chose for territories outside the six New England states defined in Exhibit A — isn't that correct?
VII. VANTAGE'S COUNTERCLAIMS AND DAMAGES THEORY
A. Breach of Contract Counterclaim
Suggested lines of questioning:
1.  Mr. Farnham, Vantage has filed counterclaims in this action, including a counterclaim for breach of contract. Are you familiar with the substance of those counterclaims?
2.  What specific provision of the Exclusive Distribution Agreement do you contend Penterra breached?
3.  If you contend that the Territory under the EDA included New York, New Jersey, and Pennsylvania, what is the contractual basis for that contention?
4.  Can you point me to any language in the EDA that includes New York, New Jersey, or Pennsylvania in the Territory?
5.  Can you point me to any language in Exhibit A that includes those states?
6.  Can you point me to any signed amendment to the EDA that adds those states to the Territory?
7.  Mr. Farnham, please identify for me every document — every email, letter, agreement, amendment, memorandum, or other writing — that you contend supports the interpretation that the Territory under the EDA includes New York, New Jersey, and Pennsylvania.
8.  (After Farnham identifies documents, examine each one. If the only document is the Kapoor Email, note that for the record.)
B. Breach of Implied Covenant of Good Faith and Fair Dealing
Suggested lines of questioning:
1.  Vantage's counterclaims also include a claim for breach of the implied covenant of good faith and fair dealing. Are you familiar with that claim?
2.  What specific conduct by Penterra do you contend constituted bad faith?
3.  Was Penterra's appointment of Meridian National Distributors as a tri-state distributor the conduct you believe constituted bad faith?
4.  Was Penterra's issuance of the March 8, 2021 cease-and-desist letter part of the alleged bad faith?
5.  Mr. Farnham, do you acknowledge that, under the EDA, Penterra had the right to appoint distributors for territories outside the six New England states?
6.  If Penterra had the contractual right to appoint Meridian for the tri-state area, how does the exercise of that right constitute bad faith?
7.  Is there anything else, other than the Meridian appointment and the cease-and-desist letter, that you contend constitutes bad faith by Penterra?
C. Promissory Estoppel
Suggested lines of questioning:
1.  Vantage has also asserted a counterclaim for promissory estoppel. Are you familiar with that claim?
2.  What specific promise does Vantage contend Penterra made?
3.  Is the January 12, 2018 Kapoor Email the promise you rely upon for this claim?
4.  Are there any other promises, written or oral, that Vantage relies upon?
5.  What actions did Vantage take in reliance on the alleged promise?
6.  Did Vantage make investments specifically directed toward building tri-state distribution capacity? If so, what investments?
7.  Did Vantage hire additional employees for tri-state operations?
8.  Did Vantage lease warehouse or office space in the tri-state area?
9.  Did Vantage invest in technology, equipment, or infrastructure to support tri-state distribution?
10.  When were those reliance expenditures made? Were they made before or after the January 12, 2018 Kapoor Email?
11.  Were they made before or after September 2020, when Vantage commenced tri-state shipments?
12.  Can you quantify the total amount Vantage invested specifically in building out its tri-state distribution capability?
13.  Can you identify documents that support those expenditures?
D. Damages Calculation ($35 Million)
This is the final substantive section and is likely to be contentious. The goal is to pin Farnham down on the methodology and assumptions underlying the $35 million figure so that it can be challenged at summary judgment and, if necessary, at trial.
Suggested lines of questioning:
1.  Mr. Farnham, let me return to the $35 million damages figure that was referenced in Mr. Rourke's March 22, 2021 letter and that forms the basis of Vantage's counterclaims. Can you explain, step by step, how that figure was calculated?
2.  Does the $35 million include lost profits?
3.  Over what time period are those lost profits calculated?
4.  Does the $35 million assume that Vantage would have had the exclusive right to distribute in the tri-state area for the entire remaining term of the EDA — that is, through June 30, 2022 — plus the two one-year renewal periods?
5.  Does the figure assume that both renewal options would have been exercised?
6.  What revenue assumptions underlie the lost profits calculation?
7.  What margin assumptions?
8.  What growth rate assumptions?
9.  Does the $35 million include consequential damages? If so, what kind?
10.  Does it include any claim for loss of goodwill, loss of customer relationships, or reputational harm?
11.  Has Vantage retained an expert to calculate damages? If so, who? (Possibly Cranmer, Hodges & Associates, P.C., Vantage's accountants — confirm.)
12.  What financial records has Vantage compiled to support the $35 million figure?
13.  The tri-state revenues generated by Vantage between September 2020 and March 2021 were approximately $6.4 million. Are those revenues included as a component of the $35 million damages claim?
14.  Does Vantage claim damages for loss of the New England territory, or only for the tri-state area?
15.  Has Vantage mitigated its damages in any way? For example, has Vantage sought or obtained other distribution agreements to replace the tri-state revenue?
16.  Is there any component of the $35 million that represents damages already incurred, as opposed to projected future losses?
VIII. RELATIONSHIP WITH PENTERRA — GENERAL
A. Communications with Penterra Personnel
This section provides context for the broader relationship and may reveal additional communications relevant to the territory dispute.
Suggested lines of questioning:
1.  Mr. Farnham, outside of the specific communications we have already discussed, how frequently did you communicate with Steven Kapoor during the term of the EDA?
2.  What was the nature of those communications? Were they about day-to-day business, sales performance, product issues, or territory?
3.  How frequently did you communicate with Rachel Mendez?
4.  What was the nature of those communications?
5.  Prior to the dispute, did you ever meet or communicate with Dr. Marcus Lindholm, CEO of Penterra?
6.  Prior to the dispute, did you ever meet or communicate with Jennifer Chao, General Counsel of Penterra?
7.  Were there annual business reviews between Vantage and Penterra?
8.  Were there quarterly check-ins or other regular touchpoints?
9.  Were those meetings in person or by phone or video conference?
10.  During any of those meetings, was the topic of territory expansion ever discussed? If so, when, by whom, and what was said?
B. Performance Under the EDA
Suggested lines of questioning:
1.  Mr. Farnham, what was your understanding of Vantage's performance obligations under the EDA?
2.  We discussed earlier that Vantage exceeded the $9.5 million annual minimum purchase commitment for Oncalaris® in each year of the agreement. Do you agree?
3.  During the term of the EDA, did Penterra ever raise any performance issues with Vantage regarding its distribution activities in the New England territory?
4.  Did Penterra ever express dissatisfaction with Vantage's sales performance, customer service, or operational capabilities in New England?
5.  Conversely, did Vantage ever raise concerns with Penterra that the six-state New England territory was too limited?
6.  Did Vantage ever formally request, in writing, that the territory be expanded?
7.  If Vantage was consistently exceeding its minimums and performing well in New England, what motivated the decision to begin distributing in the tri-state area without a formal amendment to the territory?
IX. CLOSING AND CLEAN-UP TOPICS
Suggested lines of questioning:
1.  Mr. Farnham, are there any documents or communications in your possession, or in the possession of Vantage, that relate to the territory dispute and that have not yet been produced in this litigation?
2.  Are there any documents that you reviewed in preparation for this deposition that have not been produced?
3.  Since this litigation commenced, have you spoken with any current or former employees of Penterra about the facts of this case outside of formal discovery?
4.  Have you spoken with any current or former employees of Penterra about the January 12, 2018 Kapoor Email?
5.  Is there anything I have asked you today that you would like to clarify or correct?
6.  Is there anything you would like to add to your testimony?
Note to examining attorney: Reserve the right on the record to recall this witness if additional documents are produced or if testimony at subsequent depositions raises issues requiring further examination of Mr. Farnham. Confirm the exhibit list for the record with the court reporter.
X. APPENDIX: KEY EXHIBITS CHECKLIST
The following exhibits should be prepared, tabbed, and available for use during the deposition. Tentative exhibit numbers are subject to change based on the order in which documents are introduced during the examination.
Additional exhibits may be added if Farnham identifies documents during the deposition that are not listed above. Bring blank exhibit stickers and additional copies of all documents in the production for potential use.
XI. POST-DEPOSITION FOLLOW-UP NOTES
To be completed by Hannah Brinkley following the deposition on October 18, 2021.
A. Key Admissions
(Space reserved for recording significant admissions obtained during the deposition, including specific transcript page and line references.)
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B. Surprises or Unexpected Testimony
(Space reserved for recording any testimony that deviated from expectations or revealed new information.)
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C. Areas Requiring Follow-Up
(Space reserved for identifying topics that require additional investigation, supplemental document requests, or follow-up questioning at subsequent depositions.)
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D. Cross-Reference with Upcoming Depositions
The following depositions are currently scheduled. Farnham's testimony should be reviewed and cross-referenced in preparation for each:
E. Documents Referenced but Not Yet Produced
(Space reserved for listing any documents Farnham referenced during the deposition that have not been produced in discovery. Prepare a supplemental document request if necessary.)
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F. Inconsistencies with Vantage's Interrogatory Responses and Counterclaim Allegations
(Space reserved for identifying any discrepancies between Farnham's deposition testimony and Vantage's verified interrogatory responses, counterclaim allegations, or other filings in this matter.)
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Prepared by: Hannah Brinkley, Lead Associate Calderwood & Harkness LLP hbrinkley@calderwoodharkness.com (617) 555-2840
Reviewed and approved by: Linda Osei, Partner Calderwood & Harkness LLP losei@calderwoodharkness.com (617) 555-2812
Date: October 14, 2021
PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT
Matter: | Penterra Pharmaceuticals Corp. v. Vantage Medical Distribution, LLC
Court: | Superior Court of Massachusetts, Business Litigation Session, Suffolk County
Docket No.: | 2184-CV-01537-BLS
C&H Matter No.: | 1018-00007
Deponent: | Donald R. Farnham, Managing Member & CEO, Vantage Medical Distribution, LLC
Deposition Date: | October 18, 2021
Deposition Location: | Offices of Calderwood & Harkness LLP, 1 Federal Street, 35th Floor, Boston, MA 02110 (or as noticed)
Prepared by: | Hannah Brinkley, Lead Associate
Reviewed by: | Linda Osei, Responsible Partner
Date of Memo: | October 14, 2021
Fiscal Year | Oncalaris® Purchases (at WAC)
FY 2018 | $11.2 million
FY 2019 | $14.8 million
FY 2020 | $18.3 million
FY 2021 (through March 2021) | $16.1 million (annualized approximately $21.47 million)
Exhibit No. (Tentative) | Document Description
1 | Exclusive Distribution Agreement dated July 1, 2017 (full executed copy, including all exhibits and schedules)
2 | Exhibit A to the EDA — Territory Definition (six New England states: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont)
3 | January 12, 2018 email from Steven Kapoor to Donald Farnham (the "Kapoor Email")
4 | Vantage shipping records — tri-state shipments (September 2020 through March 2021)
5 | Vantage sales revenue reports — tri-state area (approximately $6.4 million)
6 | March 8, 2021 cease-and-desist letter from Jennifer Chao (Penterra GC) to Donald Farnham
7 | March 22, 2021 response letter from Kenneth M. Rourke (Hargrove, Sinclair & Polk LLP) to Jennifer Chao
8 | Vantage internal communications regarding tri-state expansion (from document production, Bates Nos. VANTAGE-003217 through VANTAGE-003389)
9 | Penterra-Meridian term sheet dated February 15, 2021 (if not subject to pending privilege/confidentiality dispute; check status with Linda Osei before deposition)
10 | Vantage annual purchase records — Oncalaris® (FY 2018 through FY 2021)
Deponent | Date | Significance
Steven Kapoor (VP Commercial Operations, Penterra) | November 2, 2021 | Key witness re: Kapoor Email, January 11, 2018 conversation, and any other communications regarding tri-state expansion. Compare Kapoor's account against Farnham's testimony for inconsistencies.
Rachel Mendez (Director, Distribution & Logistics, Penterra) | November 19, 2021 | May have been involved in pre-EDA negotiations and ongoing business relationship. Determine whether Mendez had any communications with Farnham regarding territory.
Brian Kopec (Outside Sales Director, Vantage) | December 7, 2021 | Directly responsible for tri-state sales activities. Determine who directed Kopec to solicit orders in the tri-state area, when, and what Kopec knew about the contractual restrictions.