PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
INTERNAL MEMORANDUM
TO: Linda Osei, Responsible Partner
FROM: Hannah Brinkley, Lead Associate
DATE: May 2, 2022
RE: Oral Argument Preparation — Cross-Motions for Summary Judgment; Penterra Pharmaceuticals Corp. v. Vantage Medical Distribution, LLC, Docket No. 2184-CV-01537-BLS (MA Superior Court, Business Litigation Session, Suffolk County)
MATTER NO.: 1018-00007
HEARING DATE: May 6, 2022, 10:00 a.m., before Hon. Diane L. Costigan, J.
I. PURPOSE AND OVERVIEW
This memorandum is prepared for your use in preparing for and delivering oral argument on the cross-motions for summary judgment scheduled for Friday, May 6, 2022. The purpose of this memorandum is to provide a comprehensive and organized reference document that you can consult in advance of the hearing and, as needed, during argument itself.
As you know, Penterra's motion for summary judgment was filed on February 11, 2022. Vantage's cross-motion for summary judgment was filed on February 25, 2022. Penterra filed its combined opposition to Vantage's cross-motion and reply in support of its own motion on March 18, 2022. Vantage filed its opposition and reply on April 1, 2022. The motions are now fully briefed and ripe for disposition.
This memorandum covers the following topics, each of which corresponds to a separate section below:
(A) A concise framing of the case tailored for oral presentation before Judge Costigan;
(B) The three strongest legal authorities under Massachusetts law and their application to the facts of this case;
(C) Anticipated questions from the bench, together with suggested responses and supporting record citations;
(D) Key record citations organized by topic for quick reference during argument;
(E) Rebuttal points to Vantage's principal arguments, organized by the four theories Vantage has advanced;
(F) A recommended opening statement framework, structured around a suggested fifteen-minute allocation; and
(G) Logistical and procedural notes for the hearing, including post-argument next steps.
I am available at any time between now and the hearing to discuss strategy, rehearse anticipated questions, or refine any portion of this memorandum.
II. CONCISE CASE FRAMING FOR ORAL PRESENTATION
The following summary is designed to provide a clear, persuasive narrative that can be adapted for use in the opening minutes of oral argument. The objective is to frame the dispute as a straightforward contract-interpretation case that is ideally suited for resolution on summary judgment.
The Parties. Penterra Pharmaceuticals Corp. ("Penterra") is a Delaware corporation publicly traded on the Nasdaq Stock Market (ticker: PTRA), with its principal place of business at 400 Carnegie Center Drive, Suite 600, Princeton, New Jersey. Penterra is a specialty pharmaceutical company focused on oncology and autoimmune therapeutics. In fiscal year 2021, Penterra reported consolidated revenues of approximately $1.87 billion. Penterra is a sophisticated commercial actor with a nationwide distribution network organized through regional distribution agreements.
Vantage Medical Distribution, LLC ("Vantage") is a Massachusetts limited liability company with its principal place of business at 75 Cabot Road, Suite 310, Medford, Massachusetts. Vantage was founded in 2009 by its CEO, Donald Farnham, a former national wholesaler executive with extensive experience in pharmaceutical distribution. Vantage is a regional specialty distributor serving hospitals, clinics, and specialty pharmacies in the northeastern United States.
The Contract. On July 1, 2017, Penterra and Vantage entered into an Exclusive Distribution Agreement (the "EDA"). The EDA is a comprehensive, professionally drafted agreement that was negotiated at arm's length between two sophisticated commercial parties, each represented by experienced counsel.
Section 2.1 of the EDA granted Vantage the "exclusive right to distribute the Products within the Territory, as defined in Exhibit A." Exhibit A, which was attached to and incorporated into the EDA, defined the Territory as follows: "The states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont (collectively, the 'New England States')." The definition is clear, specific, and leaves no room for ambiguity. Six states are listed by name; no others are referenced.
The Products covered by the EDA are Oncalaris® (pegvisomant-axel), available in 20 mg and 40 mg vials, and Renuvesta® (cilosporin-beta), available in 5 mg capsules. Both are specialty pharmaceutical products with significant commercial value.
Section 2.3 of the EDA imposed a critical limitation on Vantage's distribution rights. It provides: "Distributor shall not actively solicit orders for, or deliver, the Products outside the Territory without Supplier's prior written consent." This provision reinforces the territorial limitation of Exhibit A and establishes that any expansion beyond the six New England states requires Penterra's express prior written consent — consent that was never given.
The EDA also contains two provisions that are central to the disposition of the cross-motions. Section 13.1 provides: "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." And Section 14.8, the integration clause, provides: "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."
The Breach. On or about September 14, 2020, Vantage began shipping Oncalaris® to hospitals and oncology clinics in New York, New Jersey, and Pennsylvania — three states that are unambiguously outside the Territory defined in Exhibit A. These unauthorized tri-state shipments continued through at least March 2021 and generated approximately $6.4 million in revenues for Vantage. At no point did Vantage obtain Penterra's prior written consent, execute a signed amendment to Exhibit A, or otherwise comply with the contractual requirements for expanding the Territory.
The Core Legal Question. The dispositive question on cross-motions is whether the plain language of Exhibit A controls, or whether Vantage can defeat the unambiguous written contract through reliance on an informal email sent by Penterra's then-Vice President of Strategic Partnerships, Steven Kapoor, on January 12, 2018, and a course-of-dealing theory. As set forth below, the answer under Massachusetts law is clear: the plain language of the contract controls, and Vantage's attempts to expand the Territory through informal communications and unilateral action fail as a matter of law.
Why Summary Judgment Is Appropriate. This case is a textbook candidate for summary judgment. The contract is unambiguous. The modification clause (Section 13.1) requires a written instrument signed by both parties — a requirement that was never satisfied. The integration clause (Section 14.8) bars the introduction of extrinsic evidence to contradict or supplement the written terms. The material facts are undisputed; the parties disagree only about the legal significance of the Kapoor Email and the course-of-dealing evidence. These are questions of law, not fact, and they are ripe for resolution by the court.
III. THE THREE STRONGEST AUTHORITIES UNDER MASSACHUSETTS LAW
The following three authorities represent the strongest foundations for Penterra's position. Each addresses a distinct pillar of our argument — the enforceability of written-modification clauses, the parol evidence rule, and the limitations on promissory estoppel in the face of express contractual provisions. Together, these authorities form a comprehensive doctrinal framework that compels summary judgment in Penterra's favor.
A. *Cambridge Biotech Corp. v. Pasteur Falveris Diagnostics*, 433 Mass. 122 (2000)
Holding. In Cambridge Biotech, the Supreme Judicial Court held that written-modification clauses in commercial contracts are generally enforceable under Massachusetts law. The court reasoned that parties to a commercial agreement have the right to require that any changes to their agreement be memorialized in a formal writing signed by both parties, and that courts should respect and enforce such provisions. The decision recognized that written-modification clauses serve important commercial purposes: they promote certainty, prevent disputes over alleged oral modifications, and ensure that changes to contractual obligations are deliberate and mutual.
Application. Section 13.1 of the EDA states: "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." The Kapoor Email of January 12, 2018 does not satisfy this requirement in any respect. The email was not a "written instrument signed by both parties." It was a unilateral email from a single Penterra officer, Steven Kapoor, expressing a general willingness to explore future expansion of Vantage's territory. It was not countersigned — or, indeed, signed at all — by any authorized representative of Vantage as a counterpart. It did not purport to be an amendment to the EDA. It did not reference Section 13.1 or any other provision of the EDA. And it did not use language of present authorization or consent.
Under Cambridge Biotech, Section 13.1 is enforceable and controls. The Kapoor Email cannot operate as a modification or waiver of Exhibit A's territory definition because it does not satisfy the contractual requirements for such a modification. This is the leading Massachusetts case on the enforceability of written-modification clauses in commercial agreements, and it directly forecloses Vantage's principal argument.
Significance for Oral Argument. Cambridge Biotech should be cited early and emphasized throughout. It is the authority most likely to resonate with Judge Costigan because it addresses the precise mechanism by which Vantage claims the Territory was expanded — namely, through an informal communication that does not comply with the contractual requirements for amendment.
B. *Starr v. Fordham*, 420 Mass. 178 (1995)
Holding. In Starr v. Fordham, the Supreme Judicial Court reaffirmed the fundamental principle that, where a contract contains a merger or integration clause, the parol evidence rule bars the introduction of extrinsic evidence to contradict or supplement the written terms of the agreement. The court emphasized that an integration clause is a strong indicator that the parties intended the written document to represent the complete and final expression of their agreement, and that allowing extrinsic evidence to alter the written terms would undermine the stability and predictability of contractual relationships.
Application. Section 14.8 of the EDA is a comprehensive integration clause. It provides: "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." This clause, by its plain terms, excludes all prior negotiations, representations, and agreements — whether written or oral — from the scope of the parties' agreement. The Kapoor Email, sent approximately six months after the EDA was executed, is not technically a "prior" communication; however, the integration clause establishes the principle that the four corners of the EDA govern the parties' relationship, and Section 13.1 provides the exclusive mechanism for modification.
Together, Sections 13.1 and 14.8 create an airtight framework: the EDA is the complete and final agreement, and any changes to it must be in a signed writing. Vantage cannot use the Kapoor Email, alleged oral conversations, or any other extrinsic evidence to expand the Territory beyond the six states defined in Exhibit A. Under Starr v. Fordham, the parol evidence rule reinforces the primacy of the written contract and bars the very evidence Vantage relies upon.
Significance for Oral Argument. Starr reinforces Cambridge Biotech by addressing the evidentiary dimension. If the court is inclined to consider the Kapoor Email or other extrinsic evidence, Starr provides the doctrinal basis for excluding it.
C. *Licata v. GGNSC Malden Dexter LLC*, 466 Mass. 793 (2014)
Holding. In Licata, the Supreme Judicial Court addressed the relationship between promissory estoppel and express contractual provisions. The court held that promissory estoppel cannot be used to override an express contractual provision where the parties have a governing written agreement that addresses the subject matter in question. The court reasoned that where the parties have voluntarily entered into a written agreement with specific terms, they cannot invoke equitable principles to circumvent those terms, particularly where the agreement includes an integration clause that establishes the primacy of the written document.
Application. Vantage has asserted a counterclaim for promissory estoppel, arguing that it relied to its detriment on the Kapoor Email and alleged oral assurances from Penterra that the Territory would be expanded. This counterclaim fails for three independent reasons.
First, the Kapoor Email is not an unambiguous promise. It is a conditional, forward-looking expression of willingness to explore future expansion. The language — "we're definitely open to exploring expansion" and "let's circle back mid-year" — does not constitute the type of clear and definite promise required to support a promissory estoppel claim.
Second, the EDA's integration and modification clauses govern the parties' rights and establish the exclusive mechanism for modifying the Territory. Under Licata, promissory estoppel cannot override these express contractual provisions.
Third, Vantage cannot demonstrate reasonable reliance. Section 2.3 expressly requires Penterra's "prior written consent" for distribution outside the Territory. Section 13.1 requires a "written instrument signed by both parties" for any amendment. Donald Farnham, Vantage's CEO, is a former national wholesaler executive who founded Vantage in 2009 and has decades of experience in pharmaceutical distribution. He knew — or, at a minimum, should have known — that an informal email did not constitute a valid modification of the EDA.
Significance for Oral Argument. Licata is essential to defeating Vantage's equitable arguments. If the court expresses concern about fairness or reliance, Licata provides the framework for explaining why equitable principles cannot rescue Vantage from the consequences of its own failure to obtain a proper written amendment.
Additional Note. If the court presses on the estoppel issue or questions the applicability of Licata, be prepared to cite Loranger Construction Corp. v. E.F. Hauserman Co., 376 Mass. 757, 761 (1978), which holds that "the doctrine of promissory estoppel is not to be applied where there is an express contract between the parties that covers the same subject matter," and Cellucci v. Sun Oil Co., 2 Mass. App. Ct. 722 (1974), for the proposition that estoppel cannot enlarge the scope of a written agreement.
IV. ANTICIPATED QUESTIONS FROM THE BENCH WITH SUGGESTED RESPONSES
Based on a review of Judge Costigan's prior opinions in the Business Litigation Session and the arguments raised in Vantage's briefing, the following questions are the most likely to arise during oral argument. Each is accompanied by a suggested response and supporting record citations.
Q1: "Didn't the Kapoor Email of January 12, 2018 give Vantage at least some written indication of consent?"
Suggested Response:
No, Your Honor. The Kapoor Email does not constitute written consent within the meaning of Section 2.3, nor does it constitute a valid amendment under Section 13.1. With the court's permission, I would like to read the email 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."
Three aspects of this language are dispositive. First, the email is forward-looking and conditional. It says Penterra is "open to exploring expansion" — not that expansion is authorized or approved. It conditions even the exploration on a future event: "once your New England footprint is fully ramped." Second, the email proposes a future discussion — "let's circle back mid-year and see where things stand" — which plainly indicates that no decision has been made and no consent has been granted. Third, the email does not use any words of present grant, authorization, or consent. It does not say "consent is hereby granted" or "the Territory is hereby expanded" or anything remotely similar.
Moreover, even if the email could be read as some informal indication of interest — which we do not concede — it does not satisfy the contractual requirements for modifying the EDA. Section 13.1 requires a "written instrument signed by both parties." The email was not a formal instrument. It was not signed by any Penterra officer in a manner indicating intent to be bound. And it was never countersigned by any authorized representative of Vantage.
Mr. Kapoor's own deposition testimony, taken on November 2, 2021, confirms that the email was intended to express a willingness to explore future expansion, not to grant consent or authorization for tri-state distribution. Mr. Farnham himself admitted at his October 18, 2021 deposition that no signed amendment to Exhibit A was ever executed.
Key Record Citations:
• Kapoor Email, filed as Exhibit 3 to Penterra's Statement of Undisputed Material Facts
• Deposition of Steven Kapoor (Nov. 2, 2021), confirming email expressed willingness to explore, not consent
• Deposition of Donald Farnham (Oct. 18, 2021), admitting no signed amendment to Exhibit A was ever obtained
• EDA Section 2.3 (prior written consent requirement)
• EDA Section 13.1 (written instrument signed by both parties)
Q2: "What about Penterra's alleged failure to object when Vantage began shipping into New York in late 2019? Doesn't silence constitute waiver or acquiescence?"
Suggested Response:
Your Honor, we address this argument on three levels.
First, as a matter of contract law, Section 13.1 requires that any modification, amendment, or waiver of any provision of the EDA be set forth in "a written instrument signed by both parties." Silence — by definition — cannot satisfy this requirement. Even assuming arguendo that Penterra was aware of some level of tri-state activity (which we contest), silence does not produce a signed writing, and silence cannot operate as a waiver where the contract expressly requires a written instrument for any waiver.
Second, the factual premise of Vantage's argument is unsupported by the record. Rachel Mendez, Penterra's Senior Director of Distribution Operations, testified at her November 19, 2021 deposition that Penterra's distribution systems were configured to direct Oncalaris® shipments to Vantage only for orders bearing delivery addresses in the six New England states. Ms. Mendez further testified — and confirmed in her affidavit filed in support of Penterra's motion for summary judgment — that Penterra did not become aware of the scope of Vantage's tri-state distribution activity until early 2021, when Penterra began exploring the appointment of Meridian National Distributors, Inc. as a distributor for the tri-state area and discovered Vantage's unauthorized activity. The record does not support a finding that Penterra had actual knowledge of Vantage's tri-state shipments at any time prior to early 2021, and it certainly does not support a finding of deliberate acquiescence.
Third, even if there were isolated incidental shipments of which Penterra had some awareness — which, again, the record does not support — Cambridge Biotech Corp. v. Pasteur Falveris Diagnostics forecloses the argument that a course of dealing can override a written-modification clause in a commercial contract. The written-modification clause in Section 13.1 exists precisely to prevent this type of argument: to ensure that the parties' rights are determined by the four corners of the agreement and any formal amendments thereto, not by informal conduct or alleged patterns of acquiescence.
Key Record Citations:
• Affidavit of Rachel Mendez, filed with Penterra's Motion for Summary Judgment
• Deposition of Rachel Mendez (Nov. 19, 2021)
• EDA Section 13.1
• Cambridge Biotech Corp. v. Pasteur Falveris Diagnostics, 433 Mass. 122 (2000)
Q3: "Did Vantage substantially increase its purchases of Oncalaris®, and does that investment factor into the equitable analysis?"
Suggested Response:
Your Honor, Vantage's purchase volumes, while they did increase during the term of the EDA, are irrelevant to the contract-interpretation question that is before the court on cross-motions for summary judgment.
The EDA established a minimum annual purchase commitment of $9.5 million at wholesale acquisition cost under Section 5.2. The record shows that Vantage's purchases of Penterra products grew over the term of the agreement: fiscal year 2018, $11.2 million; fiscal year 2019, $14.8 million; fiscal year 2020, $18.3 million; and fiscal year 2021 through March, $16.1 million, which annualizes to approximately $21.47 million. This growth, however, was driven by two factors: legitimate expansion within the New England market, and, beginning in September 2020, unauthorized sales into the tri-state area. The latter cannot serve as the basis for equitable relief.
Even if the court were to consider investment and reliance as part of an equitable analysis — which we submit is inappropriate in the context of a contract-interpretation motion — Vantage cannot bootstrap unauthorized conduct into equitable rights. Vantage knew or should have known that its territory was limited to the six New England states. Vantage knew or should have known that expansion required a written amendment signed by both parties. Vantage chose to proceed without obtaining the required consent and now seeks to use its own unauthorized revenues as evidence of reliance. The law does not reward such conduct.
If the court presses on the equitable dimension, we would emphasize three additional points. First, the EDA was negotiated at arm's length between sophisticated commercial parties. Second, Vantage was represented by experienced counsel throughout the negotiation and execution of the EDA. Third, Vantage's CEO, Donald Farnham, is a former national wholesaler executive with decades of experience in pharmaceutical distribution — he is not a naïve party who was misled by an email.
Key Record Citations:
• EDA Section 5.2 (minimum annual purchase commitment)
• Vantage sales records produced in discovery (purchase history by fiscal year)
• Deposition of Donald Farnham (Oct. 18, 2021) (background and experience)
Q4: "Is this dispute moot or academic given that the EDA's five-year term expires on June 30, 2022?"
Suggested Response:
No, Your Honor, the dispute is not moot, and the court's resolution of the cross-motions will have significant practical consequences for both parties.
First, Vantage has asserted counterclaims seeking $35 million in damages for alleged breach of contract, breach of the implied covenant of good faith and fair dealing, and promissory estoppel. These counterclaims remain pending regardless of the EDA's term. A ruling on the cross-motions will determine whether Vantage had any right to distribute in the tri-state area, which is the predicate for all three counterclaims. If the court declares that the Territory is limited to the six New England states — as the plain language of Exhibit A provides — then the counterclaims fail as a matter of law.
Second, the EDA does not simply expire on June 30, 2022. Section 3.2 provides for two successive one-year auto-renewal options unless either party gives 180 days' written notice of non-renewal prior to the end of the then-current term. As of the date of this memorandum, the parties' renewal intentions remain uncertain, and the agreement may well extend beyond June 30, 2022. A declaratory judgment regarding the scope of the Territory will govern the parties' rights during any renewal period.
Third, even if the EDA were to expire on June 30, 2022, the court's declaratory judgment will resolve the parties' rights definitively and prospectively. The actual controversy regarding the scope of the Territory — and the associated claims and counterclaims — persists regardless of the term's expiration.
Key Record Citations:
• EDA Section 3.1 (Term)
• EDA Section 3.2 (Renewal)
• Vantage's Counterclaim, ¶¶ 38–52
Q5: "Why shouldn't Penterra's claims be analyzed under a different framework — say, the UCC — given that the EDA involves the sale of goods?"
Suggested Response:
Your Honor, the EDA is a distribution agreement — it governs the exclusive relationship between a pharmaceutical manufacturer and a regional distributor. It is not a simple sale-of-goods contract. The agreement encompasses territory rights, exclusivity provisions, minimum purchase commitments, marketing obligations, regulatory compliance, and a host of other provisions that go well beyond the sale of goods.
However, even if the court were to analyze the EDA under the Uniform Commercial Code, the result would be the same. The UCC expressly contemplates the enforceability of written-modification provisions. M.G.L. c. 106, § 2-209(2) provides that "[a] signed agreement which excludes modification or rescission except by a signed writing cannot be otherwise modified or rescinded." Section 13.1 of the EDA is precisely the type of clause that § 2-209(2) was designed to enforce. The EDA is a signed agreement, and Section 13.1 excludes modification except by a signed writing. The result is the same under both the UCC and the common law: the written-modification clause is enforceable, and the Kapoor Email cannot serve as a modification.
Additionally, Section 14.2 of the EDA provides that the Agreement shall be governed by the laws of the Commonwealth of Massachusetts "without regard to its conflicts of law principles." The parties' choice-of-law provision should be honored, and Massachusetts law — whether applied under common law or UCC principles — supports Penterra's position.
Key Record Citations:
• EDA Section 13.1 (Amendments)
• EDA Section 14.2 (Governing Law)
• M.G.L. c. 106, § 2-209(2)
Q6: "What is the significance of Penterra's term sheet with Meridian National Distributors, Inc.?"
Suggested Response:
Your Honor, the Meridian term sheet is significant for one reason: it demonstrates that Penterra understood the tri-state area to be outside Vantage's territory and affirmatively sought to appoint a separate distributor for New York, New Jersey, Pennsylvania, and Maryland.
On February 15, 2021, Penterra executed a non-binding term sheet with Meridian National Distributors, Inc., a New York corporation with offices at 520 Seventh Avenue, 12th Floor, New York, New York. The term sheet contemplated that Meridian would serve as the exclusive distributor for Penterra's products in the tri-state area and Maryland. The negotiations ultimately stalled, however, because Vantage asserted exclusive rights over the tri-state area, precipitating this dispute.
The Meridian term sheet is consistent with Penterra's position throughout this litigation: that the Territory under the EDA has always been limited to the six New England states, and that the tri-state area was available for Penterra to assign to a different distributor. The term sheet also underscores the commercial harm caused by Vantage's unauthorized conduct — Penterra was unable to complete its arrangement with Meridian precisely because of the cloud created by Vantage's unilateral territorial expansion.
Thomas Welliver, President of Meridian National Distributors, was available for deposition but was not deposed by either party, as the relevant facts regarding the Meridian term sheet were sufficiently established through the testimony and affidavits of Penterra's own witnesses.
Key Record Citations:
• Meridian Term Sheet (Feb. 15, 2021), filed as Exhibit 7 to Penterra's Statement of Undisputed Material Facts
• Deposition of Steven Kapoor (Nov. 2, 2021) (discussing Meridian negotiations)
Q7: "Can you address Vantage's implied covenant of good faith and fair dealing counterclaim?"
Suggested Response:
Your Honor, the implied covenant of good faith and fair dealing is a well-established principle of Massachusetts law, but its function is to ensure that parties act consistently with the reasonable expectations created by their agreement — not to create new rights that are inconsistent with the express terms of that agreement.
Vantage's implied covenant claim fails because there is no allegation that Penterra failed to perform any obligation owed under the EDA. Penterra supplied the Products. Penterra honored the exclusivity within the six New England states. Penterra performed every obligation it undertook under the contract. What Penterra did not do — and what it was under no obligation to do — was permit Vantage to expand its territory beyond the New England states without a valid written amendment.
The implied covenant cannot be used to override express contractual terms. The EDA contains a clear territory definition in Exhibit A, a clear limitation on out-of-territory distribution in Section 2.3, and a clear mechanism for amendment in Section 13.1. Penterra acted entirely within its rights by confining Vantage to the six New England states. To hold otherwise would be to use the implied covenant to create a right — the right to distribute in the tri-state area — that the parties' express agreement did not confer. That is precisely what the implied covenant was not designed to do.
The Supreme Judicial Court has repeatedly held that the implied covenant cannot be used to create rights inconsistent with the parties' express agreement, particularly where the agreement includes a clear integration clause and explicit contractual limitations. Penterra's conduct was consistent with the EDA in every respect, and the implied covenant counterclaim should be dismissed.
Key Record Citations:
• EDA Section 2.1 (Grant of Exclusive Territory)
• EDA Exhibit A (Territory Definition)
• EDA Section 2.3 (Limitation)
• EDA Section 14.8 (Entire Agreement / Integration Clause)
V. KEY RECORD CITATIONS ORGANIZED BY TOPIC
The following is a consolidated reference of the key record materials, organized by topic, for use during oral argument. Patrick Gallagher will have tabbed copies of each document and can locate specific citations as needed during the hearing.
A. Contract Language
B. The Kapoor Email (January 12, 2018)
Full Text:
"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."
• Filed as Exhibit 3 to Penterra's Statement of Undisputed Material Facts.
• Sent by Steven Kapoor, then Penterra's Vice President of Strategic Partnerships, to Donald Farnham, Vantage's CEO.
• Stipulation of authenticity was requested from Hargrove, Sinclair & Polk LLP per January 10, 2022 letter from Hannah Brinkley to Nicole Fontaine. Stipulation was obtained and filed.
C. Deposition Testimony
Donald Farnham, CEO of Vantage (October 18, 2021):
• Admitted that no signed amendment to Exhibit A was ever executed.
• Acknowledged that he understood the Kapoor Email as an expression of interest rather than a binding commitment.
• Confirmed his background as a former national wholesaler executive with extensive experience in pharmaceutical distribution.
• Relevant transcript pages are compiled in the deposition summary memorandum prepared by Patrick Gallagher, dated November 5, 2021.
Steven Kapoor, former VP of Strategic Partnerships at Penterra (November 2, 2021):
• Testified that the January 12, 2018 email expressed a willingness to explore future expansion of Vantage's territory, not consent or authorization for tri-state distribution.
• Confirmed that no follow-up meeting or discussion resulted in an agreement to expand the Territory.
• Confirmed that no one at Penterra authorized tri-state shipments by Vantage in writing at any time.
• Discussed the circumstances of the Meridian National Distributors term sheet and the reasons it stalled.
Rachel Mendez, Senior Director of Distribution Operations at Penterra (November 19, 2021):
• Testified that Penterra's distribution systems were configured to direct Oncalaris® shipments to Vantage only for orders bearing delivery addresses in the six New England states.
• Testified that Penterra did not authorize or direct shipments to tri-state customers through Vantage.
• Confirmed that Penterra did not become aware of the scope of Vantage's tri-state activity until early 2021.
Brian Kopec, Director of Sales (Northeast) at Vantage (December 7, 2021):
• Testified regarding his role in directing Oncalaris® sales into New York, New Jersey, and Pennsylvania.
• Acknowledged awareness of the territorial restriction in the EDA.
• Admitted that he did not see a written amendment authorizing tri-state sales at any time.
• Described the sales strategy for the tri-state area and the customer relationships he developed.
D. Affidavits Filed with Penterra's Motion for Summary Judgment
Affidavit of Steven Kapoor:
Attesting to the meaning and intent of the January 12, 2018 email. Kapoor states that the email was an informal expression of willingness to discuss future territory expansion, not a grant of consent, authorization, or approval for Vantage to distribute Penterra products outside the six New England states.
Affidavit of Rachel Mendez:
Attesting to the distribution logistics and configuration of Penterra's systems, confirming that shipments to Vantage were directed only to New England-addressed orders. Mendez further attests that she had no knowledge of Vantage's tri-state distribution activity until early 2021 and that Penterra did not authorize or facilitate such activity.
E. Financial Data
• Vantage's tri-state revenues (September 2020 through March 2021): approximately $6.4 million, per Vantage sales records produced in discovery (Bates Nos. VAN-0014523 through VAN-0014891).
• EDA minimum annual purchase commitment (Section 5.2): $9.5 million at WAC.
• Vantage's total revenue in FY 2021: approximately $148 million, of which approximately $67 million (45.3%) was derived from Penterra products.
VI. REBUTTAL POINTS TO VANTAGE'S PRINCIPAL ARGUMENTS
Vantage's opposition to Penterra's motion and cross-motion for summary judgment advances four principal theories: (A) the Kapoor Email constitutes written consent under Section 2.3; (B) a course of dealing and implied modification expanded the Territory; (C) promissory estoppel bars Penterra from denying Vantage's territorial rights; and (D) Penterra's conduct constitutes breach of contract warranting $35 million in damages. Each theory is addressed below with point-by-point rebuttal.
A. Rebuttal to "Kapoor Email Constitutes Written Consent" Argument
Vantage's lead argument is that the Kapoor Email of January 12, 2018 constitutes "prior written consent" within the meaning of Section 2.3 and, by extension, effectively amends Exhibit A to include New York, New Jersey, and Pennsylvania within the Territory. This argument fails on multiple grounds.
1. The email is aspirational and conditional, not operative. The email does not use the language of consent, authorization, or approval. It says Penterra is "open to exploring expansion" — language of future possibility, not present grant. The expansion is expressly conditioned on a future event ("once your New England footprint is fully ramped"), and the email proposes a future discussion to evaluate the situation ("let's circle back mid-year and see where things stand"). There is nothing in this language that constitutes a present, operative grant of consent.
2. The email does not say "consent is hereby granted" or use any language of present authorization. Contrast the email's language with the type of communication that would constitute "prior written consent" under Section 2.3: a formal letter or amendment stating, for example, "Penterra hereby grants Vantage written consent to distribute the Products in New York, New Jersey, and Pennsylvania, effective as of [date]." No such communication was ever issued.
3. The email was not executed as a formal amendment. It bears no signatures. It makes no reference to Section 13.1 or any other provision of the EDA. It does not purport to amend Exhibit A. It is, by its form and content, an informal email between business contacts, not a contractual instrument.
4. Kapoor's own deposition testimony confirms the email was not intended as consent. At his November 2, 2021 deposition, Kapoor testified that the email was an expression of willingness to explore future expansion, not a grant of consent or authorization.
5. Farnham admitted that no signed amendment was obtained. At his October 18, 2021 deposition, Vantage's own CEO acknowledged that no signed amendment to Exhibit A was ever executed.
6. Under *Cambridge Biotech*, the written-modification clause controls. Section 13.1 requires a "written instrument signed by both parties" for any amendment, modification, or waiver. The Kapoor Email does not satisfy this requirement. Cambridge Biotech holds that such clauses are generally enforceable, and this court should enforce Section 13.1 according to its terms.
B. Rebuttal to "Course of Dealing / Implied Modification" Argument
Vantage's second argument is that the parties' course of dealing — including the Kapoor Email, alleged oral conversations, and Penterra's failure to object to tri-state shipments — effectively modified the EDA to expand the Territory. This argument is foreclosed by the contract and by Massachusetts law.
1. Section 13.1 expressly requires a written instrument signed by both parties for any amendment. A course of dealing — no matter how extensive — cannot satisfy this requirement. The parties specifically bargained for a written-amendment provision to ensure that any changes to the EDA would be deliberate, mutual, and documented. Allowing a course of dealing to override this provision would render Section 13.1 a nullity.
2. Section 14.8 bars reliance on extrinsic evidence to modify the four corners of the agreement. The integration clause establishes that the EDA is the complete and final expression of the parties' agreement. Extrinsic evidence — including conduct, conversations, and informal communications — cannot be used to contradict or supplement the written terms.
3. *Cambridge Biotech* holds that written-modification clauses are generally enforceable and bar oral or implied modifications. This is the controlling authority. The court should apply it directly to this case.
4. Penterra's distribution systems did not authorize or facilitate tri-state shipments through Vantage. Rachel Mendez testified that Penterra's systems directed Oncalaris® shipments to Vantage only for New England-addressed orders. The record does not support a finding that Penterra participated in, facilitated, or acquiesced to tri-state distribution.
5. Vantage cannot demonstrate Penterra's knowledge and acquiescence sufficient to override the express contract terms. Mendez testified that Penterra did not become aware of the scope of Vantage's tri-state activity until early 2021. The record does not support a finding of actual knowledge prior to that time, let alone the deliberate acquiescence that would be required — under any theory — to override a written-modification clause.
6. Vantage's own sales director admitted awareness of the territorial restriction. Brian Kopec testified at his December 7, 2021 deposition that he was aware of the territorial restriction in the EDA and that he did not see a written amendment authorizing tri-state sales. This testimony undermines Vantage's claim that it reasonably understood the Territory to include the tri-state area.
C. Rebuttal to Promissory Estoppel Counterclaim
Vantage's promissory estoppel counterclaim asserts that Penterra made a clear and definite promise to expand the Territory, that Vantage reasonably relied on that promise, and that Vantage suffered detriment as a result. Each element of this claim fails.
1. Promissory estoppel requires a clear and definite promise; the Kapoor Email is neither. The email's language is conditional, aspirational, and forward-looking. It proposes a future discussion, not a present commitment. Under Massachusetts law, a promise must be "clear and definite" to support a promissory estoppel claim. An expression of willingness to explore future possibilities does not meet this standard.
2. Reliance was not reasonable given the existence of Sections 2.3, 13.1, and 14.8. Section 2.3 requires "prior written consent" for out-of-territory distribution. Section 13.1 requires a "written instrument signed by both parties" for any amendment. Section 14.8 establishes the EDA as the complete and final agreement. No reasonable party — particularly a sophisticated commercial actor with experienced counsel — could conclude that an informal email superseded these express contractual provisions.
3. Donald Farnham's experience and sophistication defeat the reliance element. Farnham is not a naïve consumer who was misled by a powerful corporation. He is a former national wholesaler executive who founded Vantage in 2009 and has decades of experience in pharmaceutical distribution. He knew — or, at a minimum, should have known — that an informal email did not constitute a valid modification of the EDA.
4. The implied covenant and estoppel theories cannot override express contractual provisions under Massachusetts law. Under Licata v. GGNSC Malden Dexter LLC, 466 Mass. 793 (2014), promissory estoppel cannot be used to override an express contractual provision where the parties have a governing written agreement with an integration clause. This holding directly controls and requires dismissal of the estoppel counterclaim.
D. Rebuttal to Breach of Contract Counterclaim ($35 Million Damages)
Vantage's breach of contract counterclaim asserts that Penterra breached the EDA by refusing to recognize Vantage's exclusive distribution rights in the tri-state area and seeks $35 million in damages. This claim is entirely derivative of Vantage's territorial argument and fails for the same reasons.
1. The counterclaim is premised on the assumption that the Territory includes the tri-state area. Once the court declares that the Territory is limited to the six New England states — as the plain language of Exhibit A provides — the counterclaim fails as a matter of law. Vantage has no contractual right to distribute in New York, New Jersey, or Pennsylvania, and therefore has no basis for a breach claim based on Penterra's alleged interference with such distribution.
2. The $35 million damages figure lacks evidentiary support. The $35 million figure was first asserted in a March 22, 2021 letter from Kenneth M. Rourke of Hargrove, Sinclair & Polk LLP, Vantage's counsel. Vantage has not provided a detailed damages calculation or supporting expert report. Given that Vantage's total revenue in FY 2021 was approximately $148 million — of which approximately $67 million (45.3%) was derived from Penterra products — the $35 million figure appears to be speculative and unsupported.
3. The counterclaim should be dismissed on the merits. Because the counterclaim depends entirely on Vantage's erroneous territorial claim, it should be dismissed for the same reasons that support Penterra's motion for summary judgment and the entry of a declaratory judgment confirming the Territory is limited to the six New England states.
VII. RECOMMENDED OPENING STATEMENT FRAMEWORK
The following is a suggested structure for oral argument, based on a fifteen-minute allocation. This structure is designed to be clear, efficient, and persuasive, and to allow sufficient time for the court's questions while ensuring that all critical points are covered.
Suggested Structure (15-Minute Allocation)
1. Opening (approximately 2 minutes)
Begin by framing the case as a straightforward contract-interpretation dispute. This is not a complicated case. It is a case about what a contract says and whether the parties are bound by what they wrote.
Suggested opening lines: