COMMONWEALTH OF MASSACHUSETTS
SUPERIOR COURT
CIVIL ACTION COVER SHEET
Suffolk County Business Litigation Session
Docket No.: 2184-CV-01537-BLS
Date Filed: April 12, 2021
This cover sheet is filed pursuant to Superior Court Standing Order 1-88 and Rule 29 of the Massachusetts Rules of Civil Procedure. The information contained herein neither replaces nor supplements the filing and service of pleadings or other papers as required by law. This form is required for the use of the Clerk of Court for the purpose of civil caseflow management.
SECTION 1: PLAINTIFF INFORMATION
Full Name of Plaintiff: Penterra Pharmaceuticals Corp.
Entity Type: Corporation organized and existing under the laws of the State of Delaware
Principal Business Address:
400 Carnegie Center Drive, Suite 600 Princeton, New Jersey 08540
Massachusetts Registered Agent:
CT Statutory Agent Services 155 Federal Street, Suite 700 Boston, Massachusetts 02110
Number of Plaintiffs: One (1)
Additional Plaintiffs: None
SECTION 2: DEFENDANT INFORMATION
Full Name of Defendant: Vantage Medical Distribution, LLC
Entity Type: Limited liability company organized and existing under the laws of the Commonwealth of Massachusetts
Principal Business Address:
75 Cabot Road, Suite 310 Medford, Massachusetts 02155
Number of Defendants: One (1)
Additional Defendants: None
SECTION 3: PLAINTIFF'S ATTORNEY INFORMATION
Law Firm: Calderwood & Harkness LLP
Lead Attorney: Linda Osei, Esq.
BBO Number: 678214
Office Address:
1 Federal Street, 35th Floor Boston, Massachusetts 02110
Telephone: (617) 542-8400
Facsimile: (617) 542-8401
Email: losei@calderwoodharkness.com
Attorney for: Plaintiff Penterra Pharmaceuticals Corp.
SECTION 4: DEFENDANT'S ATTORNEY INFORMATION (IF KNOWN)
Anticipated Counsel: Hargrove, Sinclair & Polk LLP
Anticipated Lead Attorney: Kenneth M. Rourke, Esq.
Office Address:
200 Ashbury Asset Advisors, Suite 1800 Boston, Massachusetts 02109
Note: Counsel for Defendant has not yet formally entered an appearance in this action. The identification of anticipated counsel is based on pre-litigation correspondence dated March 22, 2021, from Kenneth M. Rourke, Esq. of Hargrove, Sinclair & Polk LLP, which correspondence was sent on behalf of Defendant Vantage Medical Distribution, LLC and addressed to undersigned counsel regarding the subject matter of this dispute. Plaintiff reserves the right to amend this Section upon the formal entry of appearance by Defendant's counsel.
SECTION 5: TYPE OF ACTION / CASE CLASSIFICATION
Case Type Code: Contract — Declaratory Judgment
Nature of Suit: This is a civil action seeking declaratory relief pursuant to the Massachusetts Declaratory Judgment Act, G.L. c. 231A, §§ 1–9. Plaintiff seeks a judicial declaration regarding the interpretation of an exclusive distribution agreement between the parties, specifically with respect to the geographic scope of an exclusive distribution territory granted to Defendant thereunder.
Detailed Classification: Declaratory Judgment — Contract Interpretation (Exclusive Distribution Agreement)
Track Designation Requested: Track D (Complex Commercial/Business Litigation), or as otherwise assigned by the Business Litigation Session of the Suffolk County Superior Court.
Business Litigation Session Designation: Requested. This action involves a complex commercial dispute between a pharmaceutical manufacturer and its exclusive distributor concerning the interpretation of a multi-year exclusive distribution agreement governing the distribution of an oncology therapeutic product. The dispute involves substantial issues of contract interpretation, including the construction of defined territorial terms, the interplay of multiple exhibits and amendments to a master agreement, and the commercial rights and obligations of the parties in a regulated pharmaceutical distribution context. Accordingly, Plaintiff respectfully requests that this matter be designated for hearing and disposition in the Business Litigation Session of the Suffolk County Superior Court pursuant to Superior Court Standing Order 1-06.
SECTION 6: RELATED CASES
Are there any related cases currently pending in any court of the Commonwealth of Massachusetts?
No.
Has this matter, or any matter arising from substantially the same facts and circumstances, been previously filed in any court?
No.
Are there any related administrative proceedings pending before any state or federal agency?
No.
SECTION 7: DEMAND / AMOUNT IN CONTROVERSY
Type of Relief Sought: Declaratory relief (non-monetary). Plaintiff does not seek monetary damages in this action. Plaintiff seeks a judicial declaration pursuant to G.L. c. 231A defining and confirming the geographic scope of the exclusive distribution territory granted to Defendant under the parties' Exclusive Distribution Agreement dated July 1, 2017.
Specific Dollar Amount Demanded by Plaintiff: None. This action seeks equitable and declaratory relief only.
Estimated Amount in Controversy (if applicable): Plaintiff notes, for purposes of caseflow management and judicial administration only, that Defendant, through its anticipated counsel, has threatened counterclaims seeking damages in the approximate amount of Thirty-Five Million Dollars ($35,000,000.00). This threatened counterclaim demand was communicated in pre-litigation correspondence dated March 22, 2021, from Kenneth M. Rourke, Esq. of Hargrove, Sinclair & Polk LLP, addressed to undersigned counsel. Plaintiff disputes the validity and merits of any such threatened counterclaims in their entirety.
Jury Trial Demanded:
No. This action is brought as a declaratory judgment action seeking equitable relief under G.L. c. 231A. Plaintiff does not demand a trial by jury. Plaintiff reserves the right to demand a jury trial on any counterclaims that may be asserted by Defendant, if and when such counterclaims are filed.
SECTION 8: BRIEF DESCRIPTION OF THE CASE
Plaintiff Penterra Pharmaceuticals Corp. ("Penterra" or "Plaintiff") is a pharmaceutical company engaged in the development, manufacture, and commercialization of specialty oncology therapeutics. Defendant Vantage Medical Distribution, LLC ("Vantage" or "Defendant") is a pharmaceutical distribution company that serves as the exclusive distributor of certain of Plaintiff's products within a defined geographic territory.
On or about July 1, 2017, Plaintiff and Defendant entered into an Exclusive Distribution Agreement (the "EDA" or the "Agreement") pursuant to which Plaintiff granted Defendant the exclusive right to market, promote, and distribute Plaintiff's oncology product, Oncalaris® (pegvisomant-axel), within a defined geographic territory (the "Territory"). The Territory is defined and delineated in Exhibit A to the Agreement.
Plaintiff seeks a judicial declaration that the exclusive distribution territory granted to Defendant under the EDA, as defined in Exhibit A thereto, is limited to the six New England states — specifically, the states of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont (collectively, the "New England States") — and does not encompass the states of New York, New Jersey, or Pennsylvania, or any other state or territory outside of the New England States.
On or about September 14, 2020, Defendant commenced unauthorized distribution of Oncalaris® (pegvisomant-axel) in the states of New York, New Jersey, and Pennsylvania, in contravention of the territorial limitation set forth in Exhibit A to the Agreement. Defendant has claimed that the Territory, as defined in the EDA, includes New York, New Jersey, and Pennsylvania, in addition to the six New England States. Plaintiff disputes this interpretation and contends that it is inconsistent with the plain language of the Agreement, the defined terms therein, and the course of dealing between the parties.
An actual controversy exists between the parties regarding the scope of the Territory as defined in the EDA. The parties have been unable to resolve this dispute through pre-litigation negotiations and correspondence. Plaintiff therefore brings this action seeking a judicial declaration to resolve the dispute and to establish with certainty the rights and obligations of the parties under the Agreement.
SECTION 9: BASIS FOR VENUE / JURISDICTION
Subject Matter Jurisdiction: This Court has subject matter jurisdiction over this action pursuant to G.L. c. 212, § 4 (general jurisdiction of the Superior Court over civil actions) and G.L. c. 231A, §§ 1–9 (declaratory judgment jurisdiction).
Personal Jurisdiction over Defendant: Defendant Vantage Medical Distribution, LLC is a Massachusetts limited liability company organized under the laws of the Commonwealth of Massachusetts, with its principal place of business located at 75 Cabot Road, Suite 310, Medford, Massachusetts 02155. Defendant is subject to personal jurisdiction in Massachusetts both as a domiciliary of the Commonwealth and under the general jurisdiction of Massachusetts courts. Furthermore, Section 14.5 of the EDA provides that each party irrevocably consents to the exclusive jurisdiction of the state and federal courts located in the Commonwealth of Massachusetts for the adjudication of any dispute arising out of or relating to the Agreement.
Governing Law: Section 14.2 of the EDA provides that the Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict-of-laws principles.
Forum Selection Clause: Section 14.5 of the EDA provides, in pertinent part, that any action, suit, or proceeding arising out of or relating to the Agreement shall be brought exclusively in the state or federal courts located in the Commonwealth of Massachusetts, and each party irrevocably submits to the exclusive jurisdiction of such courts.
Venue: Venue is proper in Suffolk County, Superior Court, pursuant to G.L. c. 223, § 5 (venue in the county where the defendant has its usual place of business or, in actions arising from contract, in the county designated by agreement of the parties). The forum selection clause in the EDA designates the Commonwealth of Massachusetts, and Plaintiff has selected Suffolk County as the appropriate venue given the location of the Business Litigation Session of the Superior Court and the parties' respective counsel in the Boston metropolitan area.
SECTION 10: CERTIFICATION AND SIGNATURE
I, Linda Osei, Esq., counsel for Plaintiff Penterra Pharmaceuticals Corp., hereby certify that the information provided in this Civil Action Cover Sheet is true and accurate to the best of my knowledge, information, and belief, formed after reasonable inquiry. I understand that this cover sheet is filed for administrative and caseflow management purposes and does not constitute a pleading or other paper within the meaning of the Massachusetts Rules of Civil Procedure, except as otherwise provided by rule or standing order.
I further certify that this action has not been previously filed in any court of the Commonwealth of Massachusetts or in any other jurisdiction, that there are no related cases currently pending, and that the information concerning anticipated defense counsel is based upon pre-litigation correspondence and is provided solely for the convenience of the Court.
CALDERWOOD & HARKNESS LLP
By: ________
Linda Osei, Esq. BBO No. 678214
Counsel for Plaintiff Penterra Pharmaceuticals Corp.
1 Federal Street, 35th Floor Boston, Massachusetts 02110 Telephone: (617) 542-8400 Facsimile: (617) 542-8401
Email: losei@calderwoodharkness.com
Date: April 12, 2021
FOR CLERK'S OFFICE USE ONLY
Date Received: ____ Docket No.: 2184-CV-01537-BLS
Filing Fee Paid: Yes No Amount: $__
Assigned to Business Litigation Session: Yes No
Assigned Judge: ________
Track Assignment: A B C D F As Assigned by BLS
Clerk's Initials: __