1018-00007 · Penterra Pharmaceuticals Corp · Post-Judgment

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MEMORANDUM

PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT

TO: Linda Osei, Responsible Partner; Priya Anand, Billing Partner

FROM: Patrick Gallagher, Working Associate

DATE: August 8, 2022

RE: Judgment Preservation and Appeal-Period Tracking — 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

CLIENT: Penterra Pharmaceuticals Corp.

This memorandum is protected by the attorney-client privilege and the work product doctrine. It is intended solely for the internal use of the attorneys and staff of Calderwood & Harkness LLP working on the above-referenced matter. It should not be disclosed to any person outside the firm without the prior written authorization of the Responsible Partner, Linda Osei.

I. Purpose

This memorandum establishes a comprehensive tracking protocol for the appeal period following entry of Final Judgment in Penterra Pharmaceuticals Corp. v. Vantage Medical Distribution, LLC, Docket No. 2184-CV-01537-BLS, in the Superior Court of Massachusetts, Business Litigation Session, Suffolk County. The purpose of this protocol is to ensure that the engagement team identifies, calendars, and monitors all critical deadlines associated with the post-judgment appeal window, and that all appropriate steps are taken to preserve the judgment obtained on behalf of our client, Penterra Pharmaceuticals Corp. ("Penterra" or the "Client").

Specifically, this memorandum: (1) identifies the critical appeal deadline arising from the entry of Final Judgment on August 5, 2022; (2) sets forth a detailed calendar and monitoring system, including responsibility assignments and backup designations, to ensure that no post-judgment filing by the opposing party goes undetected; (3) outlines the steps necessary for judgment preservation, including enforceability considerations and coordination with the Client's commercial planning; and (4) provides guidance on the next actions that should be taken depending on whether Vantage Medical Distribution, LLC ("Vantage") or its counsel, Hargrove, Sinclair & Polk LLP ("HSP"), files a notice of appeal to the Massachusetts Appeals Court.

This memorandum is intended to serve as a living document. As docket checks are conducted and new information becomes available, the Update Log in Section VIII below will be supplemented accordingly. The engagement team should treat this memorandum as the single point of reference for all appeal-period tracking activities in this matter.

II. Procedural History and Judgment Summary

A. The Court's Memorandum of Decision and Order

On July 15, 2022, the Honorable Diane L. Costigan, Justice of the Superior Court, Business Litigation Session, Suffolk County, issued a Memorandum of Decision and Order on the parties' cross-motions for summary judgment. The decision resolved the central dispute in this litigation — namely, the geographic scope of Vantage's distribution rights under the Exclusive Distribution Agreement between Penterra and Vantage dated July 1, 2017 (the "EDA").

The court granted Penterra's Motion for Summary Judgment, which had been filed on February 11, 2022, and denied Vantage's Cross-Motion for Summary Judgment, which had been filed on February 25, 2022. In so ruling, the court reached the following principal holdings:

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

2. The Kapoor Email. The court held that the January 12, 2018 email from Steven Kapoor (Penterra's Vice President, Commercial Operations) to Donald R. Farnham (Vantage's Managing Member and Chief Executive Officer) did not constitute "prior written consent" under Section 2.3 of the EDA, nor did it operate as an amendment to Exhibit A under Section 13.1 of the EDA. The court noted that Section 2.3 required prior written consent to be executed by an authorized officer of Penterra with the title of Senior Vice President or above, and that Mr. Kapoor, as Vice President, did not meet this threshold. Moreover, the court observed that even if the Kapoor Email could be construed as expressing some form of informal acquiescence, it did not satisfy the written-amendment requirements of Section 13.1, which mandated that any amendment to the EDA be in writing and signed by both parties.

3. Course-of-Dealing Argument. The court further held that Vantage's course-of-dealing argument — which was premised on Penterra's alleged acquiescence over a period of approximately three years to Vantage's distribution activities in New York, New Jersey, and Pennsylvania — was barred by the integration clause (Section 14.8 of the EDA) and the written-amendment requirement (Section 13.1). In reaching this conclusion, the court relied on Cambridge Biotech Corp. v. Pasteur Falveris Diagnostics, 433 Mass. 122 (2000), for the proposition that, under Massachusetts law, a fully integrated agreement with a written-amendment clause precludes reliance on extrinsic evidence, including course of dealing and course of performance, to vary the express terms of the contract.

4. Vantage's Counterclaims. All three of Vantage's counterclaims — (a) breach of contract, (b) breach of the implied covenant of good faith and fair dealing, and (c) promissory estoppel — were dismissed on the merits. The court found that because the EDA unambiguously limited the Territory to the six New England states, Penterra's decision to engage alternative distributors for the tri-state area (New York, New Jersey, Pennsylvania) did not constitute a breach of the EDA or a breach of the implied covenant. The court also found that Vantage's promissory estoppel claim failed because Vantage could not establish a clear and definite promise, and because reliance on the Kapoor Email was unreasonable in light of the EDA's written-amendment requirement.

The Memorandum of Decision and Order was thorough, spanning thirty-seven pages, and addressed each of the parties' arguments in detail. The court's analysis is well-grounded in established Massachusetts contract law, and, as discussed in greater detail in Section V.B below, the decision presents a relatively strong position for Penterra in the event of an appeal.

B. Entry of Final Judgment

Final Judgment was entered on August 5, 2022, resolving all claims and counterclaims between Penterra and Vantage. The Clerk of the Superior Court, Business Litigation Session, entered the judgment on the docket on that date, and the judgment became effective immediately upon entry.

The judgment is twofold in nature. First, it is a declaratory judgment under Massachusetts General Laws chapter 231A in favor of Penterra on its Complaint for Declaratory Judgment, declaring that the Territory under the EDA is limited to the six New England states identified in Exhibit A. Second, it is a judgment of dismissal with prejudice on Vantage's three counterclaims, which had collectively sought approximately $35 million in damages based on Vantage's assertion that it held exclusive distribution rights for Penterra's pharmaceutical products in both the New England region and the tri-state area.

The entry of Final Judgment on August 5, 2022 triggers the running of the appeal period under the Massachusetts Rules of Appellate Procedure, as discussed in the following section.

III. Applicable Appeal Period

A. Governing Rule

Under Massachusetts Rules of Appellate Procedure, Rule 4(a), a notice of appeal must be filed within thirty (30) days after the date of entry of the judgment or order appealed from. This rule is jurisdictional in nature; failure to file a timely notice of appeal deprives the appellate court of jurisdiction over the appeal. See Adoption of Zak, 87 Mass. App. Ct. 540, 543 (2015); Vasquez v. Commonwealth, 47 Mass. App. Ct. 169, 172 (1999). Accordingly, the timely filing of a notice of appeal by Vantage is a prerequisite to any appellate proceedings in this matter.

The relevant judgment — the Final Judgment entered on August 5, 2022 — is the operative date from which the thirty-day appeal period is measured. No separate or partial judgments were previously entered in this case, and the Final Judgment resolved all outstanding claims and counterclaims. There is therefore no question as to whether the judgment constitutes a "final" judgment for purposes of appellate jurisdiction.

B. Calculation of Appeal Deadline

The calculation of the appeal deadline requires application of the Massachusetts Rules governing computation of time. The analysis proceeds as follows:

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

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

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

Conservative Approach. To be conservative and protective of the Client's interests, this memorandum treats the appeal deadline as September 4, 2022 (the strict thirty-day mark) for internal monitoring purposes. This means the engagement team will be on heightened alert beginning well before that date. However, we acknowledge that Vantage may have until the close of business on September 6, 2022 if the weekend and holiday extension under Rules 14(a) and 6(a) applies, as it almost certainly does. We should therefore continue to monitor the docket through the close of business on September 6, 2022, and should not communicate to the Client that the judgment is final until we have confirmed, following the close of business on September 6, that no notice of appeal or other relevant filing has been made.

C. Extensions and Tolling

Several circumstances could potentially extend or toll the appeal period. Each is addressed below:

1. Motion for Extension of Time to File Notice of Appeal. Under Massachusetts Rules of Appellate Procedure, Rule 4(c), the trial court may, upon a showing of excusable neglect or good cause, extend the time for filing a notice of appeal for a period not to exceed thirty (30) days from the expiration of the original appeal period (or its extension under Rule 4(a)). This means that, in the most extreme scenario, if Vantage were to file a timely motion for an extension and such motion were granted for the maximum allowable period, the appeal deadline could theoretically be extended to approximately October 6, 2022. No motion to extend the time for filing a notice of appeal has been filed by Vantage as of the date of this memorandum.

2. Post-Judgment Motions Tolling the Appeal Period. No post-judgment motion — including, without limitation, a motion to reconsider, a motion for a new trial under Massachusetts Rules of Civil Procedure, Rule 59, or a motion for relief from judgment under Massachusetts Rules of Civil Procedure, Rule 60 — has been filed by Vantage as of the date of this memorandum. Were such a motion to be filed, it could toll the appeal period under Massachusetts Rules of Appellate Procedure, Rule 4(a), such that the thirty-day appeal clock would not begin to run until entry of the order disposing of the post-judgment motion. This is a critical contingency to monitor during the appeal period.

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

IV. Calendar and Monitoring Protocol

A. Key Dates

The following table sets forth the key dates for the appeal-period monitoring protocol. Each date is accompanied by a description of the action item or event associated with it. The engagement team should treat this table as the master schedule for appeal-period tracking.

B. Monitoring Responsibilities

The following assignments govern docket monitoring during the appeal period:

Primary Monitor. Patrick Gallagher will serve as the primary monitor and will conduct each docket check on or before the dates listed in the table above. Each docket check will be performed by reviewing the electronic docket for Docket No. 2184-CV-01537-BLS via the Massachusetts Trial Court Electronic Filing System ("MassCourts eFiling"). Upon completion of each check, Patrick Gallagher will update the Update Log in Section VIII of this memorandum with the results.

Calendar Entries. Calendar reminders have been entered in the firm's centralized docketing system (Calderwood & Harkness LLP matter calendar, matter no. 1018-00007) for the following dates: August 19, 2022; September 1, 2022; and September 6, 2022. Each reminder includes a notation referencing this memorandum and specifying the action to be taken.

Backup Monitor. Hannah Brinkley, Lead Associate, will serve as the backup monitor for docket monitoring in the event that Patrick Gallagher is unavailable due to illness, travel, or other commitments on any of the scheduled monitoring dates. Hannah Brinkley has been briefed on the monitoring protocol and has access to the MassCourts eFiling system for this matter.

Immediate Notification. If any filing is detected during a docket check — including, without limitation, a notice of appeal, a motion for extension of time to file a notice of appeal, a motion to reconsider, a motion for a new trial, a motion for relief from judgment, or any other post-judgment filing by Vantage or HSP — Patrick Gallagher (or Hannah Brinkley, if acting as backup) will immediately notify Linda Osei by telephone and email. If Linda Osei is unreachable, notification should be directed to Priya Anand.

C. Notification to Client

Jennifer Chao, General Counsel of Penterra Pharmaceuticals Corp., was advised of the appeal period and the applicable deadline in the Client Advisory Letter dated July 18, 2022, which was sent by Linda Osei. That letter informed Ms. Chao that the Final Judgment would be entered in due course and that Vantage would have thirty days from the date of entry to file a notice of appeal. The letter noted that Penterra should refrain from taking any action in reliance on the judgment (such as finalizing the Meridian distribution arrangement) until the appeal period had expired without a filing by Vantage.

A final confirmation communication to Jennifer Chao should be sent promptly after expiration of the appeal period. The target date for this communication is September 7, 2022, assuming no appeal or post-judgment motion is filed. The communication should confirm that: (a) no notice of appeal was filed by Vantage within the applicable appeal period; (b) no post-judgment motion or motion for extension of time was filed; (c) the Final Judgment entered on August 5, 2022 is now final and non-appealable; and (d) Penterra may proceed with its commercial plans in reliance on the judgment. Linda Osei should review and send this communication.

V. Contingency: If Vantage Files a Notice of Appeal

Although we believe the court's Memorandum of Decision and Order is well-reasoned and should withstand appellate scrutiny, we must be prepared for the possibility that Vantage or its counsel at HSP will file a notice of appeal. The following steps should be taken in the event that occurs.

A. Immediate Steps

If a notice of appeal is filed by Vantage or by HSP on Vantage's behalf — the attorneys of record for Vantage are Kenneth M. Rourke and Alicia Fontaine of Hargrove, Sinclair & Polk LLP — the following actions should be taken immediately:

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

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

3. Review of the Notice of Appeal. Obtain and review the notice of appeal to identify the specific judgment or order being appealed and the appellate court designation. Vantage's appeal would be taken to the Massachusetts Appeals Court, unless Vantage were to seek direct appellate review by the Supreme Judicial Court under G.L. c. 211A, § 10 (which is discretionary and granted only in rare circumstances involving questions of first impression or matters of public importance). Confirm the accuracy of the filing and determine whether it complies with the formal requirements of Mass. R. App. P. 3.

B. Appellate Preparation

In the event of an appeal, the engagement team should take the following preparatory steps:

1. Preliminary Assessment of Appellate Issues. Prepare a preliminary assessment of the likely appellate issues that Vantage may raise. For reference, the Post-Decision Analysis Memorandum dated July 20, 2022, prepared by Hannah Brinkley, identifies several potential grounds that Vantage might advance on appeal, including: (a) challenges to the court's application of the written-modification clause doctrine, particularly whether the Kapoor Email could constitute a written modification under a more relaxed standard; (b) challenges to the court's integration clause analysis, including whether the court gave insufficient weight to the parties' course of dealing; and (c) challenges to the court's dismissal of Vantage's promissory estoppel counterclaim, including whether the court applied an overly stringent standard for establishing a "clear and definite promise." The Post-Decision Analysis Memorandum concluded that, while these arguments are not frivolous, they face significant obstacles given the strength of the integration clause and the written-amendment provision in the EDA, as well as the well-established Massachusetts precedent cited by the court.

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

3. Budget Revision. Revise the matter budget to account for appellate proceedings. The original estimated budget of $750,000 to $1,200,000 was scoped through trial in the Superior Court and did not encompass appellate proceedings. An appeal to the Massachusetts Appeals Court, including briefing, oral argument preparation, and oral argument, would likely require an additional estimated budget in the range of $150,000 to $350,000, depending on the complexity of the issues and the extent of the record. A revised budget estimate should be prepared and communicated to the Client for approval before substantive appellate work commences.

C. Record Assembly

If Vantage files a notice of appeal, the parties will be required to assemble the record for appellate review. The following steps should be taken in coordination with the Superior Court Clerk's office:

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

2. Key Record Items. The following items are likely to be included in the record appendix and should be readily accessible in the matter file:

• The Exclusive Distribution Agreement dated July 1, 2017, including all exhibits (in particular, Exhibit A — Territory Definition, which lists the six New England states);

• The January 12, 2018 email from Steven Kapoor (Penterra VP, Commercial Operations) to Donald R. Farnham (Vantage Managing Member & CEO) (the "Kapoor Email");

• The Affidavit of Steven Kapoor, filed in support of Penterra's Motion for Summary Judgment;

• The Affidavit of Rachel Mendez (Penterra Director, Distribution Strategy), filed in support of Penterra's Motion for Summary Judgment;

• The deposition transcript of Donald R. Farnham, taken on October 18, 2021;

• The deposition transcript of Steven Kapoor, taken on November 2, 2021;

• The deposition transcript of Rachel Mendez, taken on November 19, 2021;

• The deposition transcript of Brian Kopec (Vantage VP, Operations), taken on December 7, 2021;

• Penterra's Motion for Summary Judgment and supporting brief (filed February 11, 2022);

• Vantage's Cross-Motion for Summary Judgment and supporting brief (filed February 25, 2022);

• Penterra's Opposition to Vantage's Cross-Motion for Summary Judgment (filed March 18, 2022);

• Vantage's Opposition to Penterra's Motion for Summary Judgment (filed March 18, 2022);

• All reply briefs filed in connection with the cross-motions;

• The court's Memorandum of Decision and Order dated July 15, 2022; and

• The Final Judgment entered August 5, 2022.

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

VI. Judgment Preservation Considerations

A. Ensuring Enforceability of the Declaratory Judgment

The declaratory judgment entered in this case establishes, as a matter of law, that Vantage's exclusive territory under the EDA is limited to the six New England states enumerated in Exhibit A to the EDA: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Upon the judgment becoming final and non-appealable, Penterra should treat this declaration as binding and may proceed to finalize its distribution arrangements for territories outside the six New England states without risk of a claim by Vantage.

Of particular commercial significance, Penterra may proceed to finalize the distribution arrangement with Meridian National Distributors, Inc. ("Meridian") for the tri-state area (New York, New Jersey, and Pennsylvania) upon expiration of the appeal period without an appeal being filed. As background, Penterra executed a term sheet with Meridian on February 15, 2021, which contemplated the appointment of Meridian as Penterra's exclusive distributor for pharmaceutical products in New York, New Jersey, and Pennsylvania. The term sheet was expressly contingent on the resolution of this litigation and had been stalled pending the outcome of the summary judgment proceedings. Linda Osei should advise Jennifer Chao that, once the judgment is final, Penterra may proceed with the Meridian arrangement. However, we recommend that Penterra's transactional counsel review the term sheet and any draft definitive agreements with Meridian before execution to ensure consistency with the terms of the declaratory judgment.

If Vantage files an appeal, the situation becomes more nuanced. A notice of appeal does not automatically stay the enforcement of the judgment. Under Massachusetts Rules of Appellate Procedure, Rule 6, a stay of enforcement pending appeal may be obtained from the trial court or, under certain circumstances, from the appellate court. Unless and until Vantage obtains a stay, the declaratory judgment remains enforceable. However, as a practical matter, Penterra may wish to exercise caution about entering into a long-term distribution agreement with Meridian while an appeal is pending, given the potential (however remote) that the appellate court could reverse the trial court's decision. This is a business judgment that should be discussed with the Client.

B. EDA Expiration and Renewal Status

A separate but related issue concerns the status of the EDA itself. The original five-year term of the EDA commenced on July 1, 2017 and expired on June 30, 2022 — that is, before the entry of Final Judgment on August 5, 2022. The EDA contained a renewal provision that provided for two successive one-year auto-renewal options (extending the term through June 30, 2023 and June 30, 2024, respectively), unless either party gave one hundred eighty (180) days' prior written notice of non-renewal.

It is important to confirm with Jennifer Chao whether Penterra provided timely non-renewal notice. One hundred eighty days prior to June 30, 2022 would be approximately January 1, 2022. If Penterra sent a non-renewal notice on or before that date, the EDA expired by its terms on June 30, 2022, and Vantage's distribution rights within the New England Territory have ceased. If, however, Penterra did not send timely non-renewal notice, the EDA would have auto-renewed for the first one-year extension period, extending through June 30, 2023, and Vantage would continue to hold exclusive distribution rights within the six New England states through that date.

This issue is separate from the territorial scope question that was the subject of the litigation. The court's declaratory judgment addressed only the geographic scope of the Territory; it did not address the duration of the EDA or Vantage's ongoing rights within the New England Territory. Linda Osei should follow up with Jennifer Chao to confirm the renewal status and, if necessary, advise Penterra on any steps required to terminate or manage the EDA relationship going forward.

C. Costs and Fees

The declaratory judgment entered by the court did not include an award of attorneys' fees or costs in favor of either party. This is consistent with the general rule in Massachusetts, which follows the American Rule — that is, each party bears its own attorneys' fees and costs absent a contractual or statutory provision to the contrary. A review of the EDA confirms that it does not contain a prevailing-party fee-shifting clause or any other provision that would entitle the prevailing party to recover its litigation costs or attorneys' fees from the non-prevailing party.

No further action on fee recovery is required. The matter budget should reflect the full cost of the litigation as borne by Penterra, with no offset for anticipated fee recovery.

VII. Document Retention

All pleadings, briefs, discovery materials (including deposition transcripts, interrogatory responses, document productions, and expert reports, if any), correspondence, internal and external communications, work product memoranda, research memoranda, and the court's orders and judgments should be retained in the matter file (matter no. 1018-00007) in accordance with Calderwood & Harkness LLP's Document Retention Policy (Firm Policy No. DR-2019-04, as amended). Under that policy, files for completed litigation matters are retained for a minimum of seven (7) years from the date the matter is closed, unless a longer retention period is required by applicable law, regulation, or client instruction.

Electronic copies of the following critical documents have been saved to the matter folder on the firm's document management system (Stonefield Systems, matter workspace 1018-00007):

• The Final Judgment entered August 5, 2022;

• The Memorandum of Decision and Order issued by Hon. Diane L. Costigan, J., dated July 15, 2022;

• The Client Advisory Letter dated July 18, 2022 from Linda Osei to Jennifer Chao;

• The Post-Decision Analysis Memorandum dated July 20, 2022 prepared by Hannah Brinkley; and

• This Judgment Preservation and Appeal-Period Tracking Memorandum dated August 8, 2022.

All additional documents generated during the appeal monitoring period (including docket printouts from each monitoring check and any client correspondence) should be saved to the same matter workspace as they are created.

VIII. Update Log

The following log tracks all updates to this memorandum throughout the appeal monitoring period. Entries will be added as docket checks are conducted and new information becomes available.

Post-Deadline Notation — September 6, 2022:

Docket for Docket No. 2184-CV-01537-BLS reviewed via MassCourts eFiling at close of business on September 6, 2022. No notice of appeal, motion for extension of time to file notice of appeal, or post-judgment motion (including any motion to reconsider, motion for new trial under Mass. R. Civ. P. 59, or motion for relief from judgment under Mass. R. Civ. P. 60) was filed by Vantage Medical Distribution, LLC or by Hargrove, Sinclair & Polk LLP at any point during the appeal period. The appeal period has expired. The Final Judgment entered August 5, 2022 is now final and non-appealable. Linda Osei and Priya Anand notified by email at 5:47 PM on September 6, 2022. Client notification letter to Jennifer Chao (General Counsel, Penterra Pharmaceuticals Corp.) to follow on September 7, 2022.

IX. Conclusion and Recommendation

The appeal deadline — including the weekend and holiday extension under Massachusetts Rules of Appellate Procedure, Rule 14(a) and Massachusetts Rules of Civil Procedure, Rule 6(a) — passed at the close of business on September 6, 2022 without Vantage Medical Distribution, LLC or its counsel at Hargrove, Sinclair & Polk LLP filing a notice of appeal, a motion for extension of time to file a notice of appeal, or any post-judgment motion that might have tolled the appeal period. The declaratory judgment entered by the Superior Court, Business Litigation Session, Suffolk County, on August 5, 2022 in favor of Penterra Pharmaceuticals Corp. is now final and non-appealable.

Based on the foregoing, I respectfully recommend the following next steps:

1. Client Notification. Linda Osei should send a brief communication to Jennifer Chao, General Counsel of Penterra Pharmaceuticals Corp., confirming the finality of the judgment. The communication should advise Ms. Chao that: (a) the appeal period has expired without any filing by Vantage; (b) the Final Judgment is now final and non-appealable; (c) Penterra may proceed with its commercial plans for the tri-state territory (New York, New Jersey, and Pennsylvania), including finalization of the Meridian National Distributors, Inc. distribution arrangement; and (d) Penterra should confirm the renewal status of the EDA with respect to Vantage's ongoing distribution rights within the New England Territory.

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

3. Final Billing. Priya Anand should coordinate with the billing team to ensure that all outstanding time entries and disbursements have been posted and that a final invoice is prepared and sent to Penterra.

This memorandum will remain a part of the permanent matter file for reference purposes.

Prepared by:

________________________________________

Patrick Gallagher Working Associate Calderwood & Harkness LLP

Reviewed by:

________________________________________

Hannah Brinkley Lead Associate (Backup Monitor) Calderwood & Harkness LLP

Distribution:

Linda Osei, Responsible Partner Priya Anand, Billing Partner

PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT This memorandum is protected by the attorney-client privilege and the work product doctrine. It is intended solely for the internal use of the attorneys and staff of Calderwood & Harkness LLP working on Matter No. 1018-00007. Unauthorized disclosure is strictly prohibited.

Date	Event / Action Item
August 5, 2022	Final Judgment entered by the Clerk of the Superior Court, Business Litigation Session — the appeal clock begins running on this date.
August 8, 2022	Date of this memorandum; calendar entries set in Calderwood & Harkness LLP's firm docketing system for all monitoring dates; initial docket check confirmed (no post-judgment filings detected).
August 19, 2022	Mid-period check: Monitor the electronic docket for Docket No. 2184-CV-01537-BLS for any post-judgment motions, notice of appeal, or motion for extension of time to file notice of appeal. This check occurs fourteen (14) days after entry of Final Judgment.
September 1, 2022	Pre-deadline check: Review the docket to confirm that no notice of appeal or post-judgment motion has been filed. This check occurs twenty-seven (27) days after entry of Final Judgment and provides three business days of lead time before the strict thirty-day anniversary.
September 4, 2022	Strict thirty-day anniversary of judgment entry. This date falls on a Sunday; the court is closed. No filing can occur on this date.
September 5, 2022	Labor Day — Massachusetts state and federal courts are closed. No filing can occur on this date.
September 6, 2022	Extended deadline (next business day after the thirty-day anniversary). Conduct a final docket check at or shortly before the close of business to confirm whether a notice of appeal, motion for extension of time, or any other post-judgment filing has been made by Vantage or HSP.
September 7, 2022	If no appeal or post-judgment motion has been filed, prepare a confirmation memorandum to the engagement team and a client notification letter to Jennifer Chao (General Counsel, Penterra) confirming that the judgment is final and non-appealable.
Date	Update	By
August 8, 2022	Memorandum prepared and circulated to Linda Osei and Priya Anand. Calendar entries set in firm docketing system for monitoring dates (August 19, September 1, and September 6, 2022). Initial docket check conducted — no post-judgment filings detected on the docket for Docket No. 2184-CV-01537-BLS.	P. Gallagher
August 19, 2022	[Placeholder for mid-period docket check result]	P. Gallagher
September 1, 2022	[Placeholder for pre-deadline docket check result]	P. Gallagher
September 6, 2022	[Placeholder for final docket check result]	P. Gallagher

MEMORANDUM
PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT
TO: Linda Osei, Responsible Partner; Priya Anand, Billing Partner
FROM: Patrick Gallagher, Working Associate
DATE: August 8, 2022
RE: Judgment Preservation and Appeal-Period Tracking — 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
CLIENT: Penterra Pharmaceuticals Corp.
This memorandum is protected by the attorney-client privilege and the work product doctrine. It is intended solely for the internal use of the attorneys and staff of Calderwood & Harkness LLP working on the above-referenced matter. It should not be disclosed to any person outside the firm without the prior written authorization of the Responsible Partner, Linda Osei.
I. Purpose
This memorandum establishes a comprehensive tracking protocol for the appeal period following entry of Final Judgment in Penterra Pharmaceuticals Corp. v. Vantage Medical Distribution, LLC, Docket No. 2184-CV-01537-BLS, in the Superior Court of Massachusetts, Business Litigation Session, Suffolk County. The purpose of this protocol is to ensure that the engagement team identifies, calendars, and monitors all critical deadlines associated with the post-judgment appeal window, and that all appropriate steps are taken to preserve the judgment obtained on behalf of our client, Penterra Pharmaceuticals Corp. ("Penterra" or the "Client").
Specifically, this memorandum: (1) identifies the critical appeal deadline arising from the entry of Final Judgment on August 5, 2022; (2) sets forth a detailed calendar and monitoring system, including responsibility assignments and backup designations, to ensure that no post-judgment filing by the opposing party goes undetected; (3) outlines the steps necessary for judgment preservation, including enforceability considerations and coordination with the Client's commercial planning; and (4) provides guidance on the next actions that should be taken depending on whether Vantage Medical Distribution, LLC ("Vantage") or its counsel, Hargrove, Sinclair & Polk LLP ("HSP"), files a notice of appeal to the Massachusetts Appeals Court.
This memorandum is intended to serve as a living document. As docket checks are conducted and new information becomes available, the Update Log in Section VIII below will be supplemented accordingly. The engagement team should treat this memorandum as the single point of reference for all appeal-period tracking activities in this matter.
II. Procedural History and Judgment Summary
A. The Court's Memorandum of Decision and Order
On July 15, 2022, the Honorable Diane L. Costigan, Justice of the Superior Court, Business Litigation Session, Suffolk County, issued a Memorandum of Decision and Order on the parties' cross-motions for summary judgment. The decision resolved the central dispute in this litigation — namely, the geographic scope of Vantage's distribution rights under the Exclusive Distribution Agreement between Penterra and Vantage dated July 1, 2017 (the "EDA").
The court granted Penterra's Motion for Summary Judgment, which had been filed on February 11, 2022, and denied Vantage's Cross-Motion for Summary Judgment, which had been filed on February 25, 2022. In so ruling, the court reached the following principal holdings:
1. Territorial Scope of the EDA. The court declared that the "Territory" under the EDA is limited to the six New England states enumerated in Exhibit A to the EDA: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. The court found that the contractual language was unambiguous and that Exhibit A provided a definitive and exclusive listing of the states comprising the Territory.
2. The Kapoor Email. The court held that the January 12, 2018 email from Steven Kapoor (Penterra's Vice President, Commercial Operations) to Donald R. Farnham (Vantage's Managing Member and Chief Executive Officer) did not constitute "prior written consent" under Section 2.3 of the EDA, nor did it operate as an amendment to Exhibit A under Section 13.1 of the EDA. The court noted that Section 2.3 required prior written consent to be executed by an authorized officer of Penterra with the title of Senior Vice President or above, and that Mr. Kapoor, as Vice President, did not meet this threshold. Moreover, the court observed that even if the Kapoor Email could be construed as expressing some form of informal acquiescence, it did not satisfy the written-amendment requirements of Section 13.1, which mandated that any amendment to the EDA be in writing and signed by both parties.
3. Course-of-Dealing Argument. The court further held that Vantage's course-of-dealing argument — which was premised on Penterra's alleged acquiescence over a period of approximately three years to Vantage's distribution activities in New York, New Jersey, and Pennsylvania — was barred by the integration clause (Section 14.8 of the EDA) and the written-amendment requirement (Section 13.1). In reaching this conclusion, the court relied on Cambridge Biotech Corp. v. Pasteur Falveris Diagnostics, 433 Mass. 122 (2000), for the proposition that, under Massachusetts law, a fully integrated agreement with a written-amendment clause precludes reliance on extrinsic evidence, including course of dealing and course of performance, to vary the express terms of the contract.
4. Vantage's Counterclaims. All three of Vantage's counterclaims — (a) breach of contract, (b) breach of the implied covenant of good faith and fair dealing, and (c) promissory estoppel — were dismissed on the merits. The court found that because the EDA unambiguously limited the Territory to the six New England states, Penterra's decision to engage alternative distributors for the tri-state area (New York, New Jersey, Pennsylvania) did not constitute a breach of the EDA or a breach of the implied covenant. The court also found that Vantage's promissory estoppel claim failed because Vantage could not establish a clear and definite promise, and because reliance on the Kapoor Email was unreasonable in light of the EDA's written-amendment requirement.
The Memorandum of Decision and Order was thorough, spanning thirty-seven pages, and addressed each of the parties' arguments in detail. The court's analysis is well-grounded in established Massachusetts contract law, and, as discussed in greater detail in Section V.B below, the decision presents a relatively strong position for Penterra in the event of an appeal.
B. Entry of Final Judgment
Final Judgment was entered on August 5, 2022, resolving all claims and counterclaims between Penterra and Vantage. The Clerk of the Superior Court, Business Litigation Session, entered the judgment on the docket on that date, and the judgment became effective immediately upon entry.
The judgment is twofold in nature. First, it is a declaratory judgment under Massachusetts General Laws chapter 231A in favor of Penterra on its Complaint for Declaratory Judgment, declaring that the Territory under the EDA is limited to the six New England states identified in Exhibit A. Second, it is a judgment of dismissal with prejudice on Vantage's three counterclaims, which had collectively sought approximately $35 million in damages based on Vantage's assertion that it held exclusive distribution rights for Penterra's pharmaceutical products in both the New England region and the tri-state area.
The entry of Final Judgment on August 5, 2022 triggers the running of the appeal period under the Massachusetts Rules of Appellate Procedure, as discussed in the following section.
III. Applicable Appeal Period
A. Governing Rule
Under Massachusetts Rules of Appellate Procedure, Rule 4(a), a notice of appeal must be filed within thirty (30) days after the date of entry of the judgment or order appealed from. This rule is jurisdictional in nature; failure to file a timely notice of appeal deprives the appellate court of jurisdiction over the appeal. See Adoption of Zak, 87 Mass. App. Ct. 540, 543 (2015); Vasquez v. Commonwealth, 47 Mass. App. Ct. 169, 172 (1999). Accordingly, the timely filing of a notice of appeal by Vantage is a prerequisite to any appellate proceedings in this matter.
The relevant judgment — the Final Judgment entered on August 5, 2022 — is the operative date from which the thirty-day appeal period is measured. No separate or partial judgments were previously entered in this case, and the Final Judgment resolved all outstanding claims and counterclaims. There is therefore no question as to whether the judgment constitutes a "final" judgment for purposes of appellate jurisdiction.
B. Calculation of Appeal Deadline
The calculation of the appeal deadline requires application of the Massachusetts Rules governing computation of time. The analysis proceeds as follows:
1. Starting Point. The thirty-day period begins to run on the day after entry of the judgment. The judgment was entered on August 5, 2022, so day one of the appeal period is August 6, 2022.
2. Thirty-Day Calculation. Counting thirty days from August 5, 2022 (i.e., beginning the count on August 6), the thirtieth day falls on September 4, 2022.
3. Weekend and Holiday Extension. September 4, 2022 is a Sunday. Furthermore, September 5, 2022 is Labor Day, a legal holiday recognized under Massachusetts law. Under Massachusetts Rules of Appellate Procedure, Rule 14(a), and Massachusetts Rules of Civil Procedure, Rule 6(a), when the last day of a period falls on a Saturday, Sunday, or legal holiday, the period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday. Because the thirtieth day (September 4) is a Sunday and the following day (September 5) is Labor Day, the appeal period is extended to the next business day, which is September 6, 2022 (Tuesday).
Conservative Approach. To be conservative and protective of the Client's interests, this memorandum treats the appeal deadline as September 4, 2022 (the strict thirty-day mark) for internal monitoring purposes. This means the engagement team will be on heightened alert beginning well before that date. However, we acknowledge that Vantage may have until the close of business on September 6, 2022 if the weekend and holiday extension under Rules 14(a) and 6(a) applies, as it almost certainly does. We should therefore continue to monitor the docket through the close of business on September 6, 2022, and should not communicate to the Client that the judgment is final until we have confirmed, following the close of business on September 6, that no notice of appeal or other relevant filing has been made.
C. Extensions and Tolling
Several circumstances could potentially extend or toll the appeal period. Each is addressed below:
1. Motion for Extension of Time to File Notice of Appeal. Under Massachusetts Rules of Appellate Procedure, Rule 4(c), the trial court may, upon a showing of excusable neglect or good cause, extend the time for filing a notice of appeal for a period not to exceed thirty (30) days from the expiration of the original appeal period (or its extension under Rule 4(a)). This means that, in the most extreme scenario, if Vantage were to file a timely motion for an extension and such motion were granted for the maximum allowable period, the appeal deadline could theoretically be extended to approximately October 6, 2022. No motion to extend the time for filing a notice of appeal has been filed by Vantage as of the date of this memorandum.
2. Post-Judgment Motions Tolling the Appeal Period. No post-judgment motion — including, without limitation, a motion to reconsider, a motion for a new trial under Massachusetts Rules of Civil Procedure, Rule 59, or a motion for relief from judgment under Massachusetts Rules of Civil Procedure, Rule 60 — has been filed by Vantage as of the date of this memorandum. Were such a motion to be filed, it could toll the appeal period under Massachusetts Rules of Appellate Procedure, Rule 4(a), such that the thirty-day appeal clock would not begin to run until entry of the order disposing of the post-judgment motion. This is a critical contingency to monitor during the appeal period.
3. Present Status. As of August 8, 2022, no tolling event has occurred. The appeal period is running, and the operative deadline remains September 6, 2022 (accounting for the weekend and holiday extension). We will continue to monitor the docket for any post-judgment motion or motion for extension of time that could alter this calculation.
IV. Calendar and Monitoring Protocol
A. Key Dates
The following table sets forth the key dates for the appeal-period monitoring protocol. Each date is accompanied by a description of the action item or event associated with it. The engagement team should treat this table as the master schedule for appeal-period tracking.
B. Monitoring Responsibilities
The following assignments govern docket monitoring during the appeal period:
Primary Monitor. Patrick Gallagher will serve as the primary monitor and will conduct each docket check on or before the dates listed in the table above. Each docket check will be performed by reviewing the electronic docket for Docket No. 2184-CV-01537-BLS via the Massachusetts Trial Court Electronic Filing System ("MassCourts eFiling"). Upon completion of each check, Patrick Gallagher will update the Update Log in Section VIII of this memorandum with the results.
Calendar Entries. Calendar reminders have been entered in the firm's centralized docketing system (Calderwood & Harkness LLP matter calendar, matter no. 1018-00007) for the following dates: August 19, 2022; September 1, 2022; and September 6, 2022. Each reminder includes a notation referencing this memorandum and specifying the action to be taken.
Backup Monitor. Hannah Brinkley, Lead Associate, will serve as the backup monitor for docket monitoring in the event that Patrick Gallagher is unavailable due to illness, travel, or other commitments on any of the scheduled monitoring dates. Hannah Brinkley has been briefed on the monitoring protocol and has access to the MassCourts eFiling system for this matter.
Immediate Notification. If any filing is detected during a docket check — including, without limitation, a notice of appeal, a motion for extension of time to file a notice of appeal, a motion to reconsider, a motion for a new trial, a motion for relief from judgment, or any other post-judgment filing by Vantage or HSP — Patrick Gallagher (or Hannah Brinkley, if acting as backup) will immediately notify Linda Osei by telephone and email. If Linda Osei is unreachable, notification should be directed to Priya Anand.
C. Notification to Client
Jennifer Chao, General Counsel of Penterra Pharmaceuticals Corp., was advised of the appeal period and the applicable deadline in the Client Advisory Letter dated July 18, 2022, which was sent by Linda Osei. That letter informed Ms. Chao that the Final Judgment would be entered in due course and that Vantage would have thirty days from the date of entry to file a notice of appeal. The letter noted that Penterra should refrain from taking any action in reliance on the judgment (such as finalizing the Meridian distribution arrangement) until the appeal period had expired without a filing by Vantage.
A final confirmation communication to Jennifer Chao should be sent promptly after expiration of the appeal period. The target date for this communication is September 7, 2022, assuming no appeal or post-judgment motion is filed. The communication should confirm that: (a) no notice of appeal was filed by Vantage within the applicable appeal period; (b) no post-judgment motion or motion for extension of time was filed; (c) the Final Judgment entered on August 5, 2022 is now final and non-appealable; and (d) Penterra may proceed with its commercial plans in reliance on the judgment. Linda Osei should review and send this communication.
V. Contingency: If Vantage Files a Notice of Appeal
Although we believe the court's Memorandum of Decision and Order is well-reasoned and should withstand appellate scrutiny, we must be prepared for the possibility that Vantage or its counsel at HSP will file a notice of appeal. The following steps should be taken in the event that occurs.
A. Immediate Steps
If a notice of appeal is filed by Vantage or by HSP on Vantage's behalf — the attorneys of record for Vantage are Kenneth M. Rourke and Alicia Fontaine of Hargrove, Sinclair & Polk LLP — the following actions should be taken immediately:
1. Internal Notification. Immediately notify Linda Osei (Responsible Partner) and Priya Anand (Billing Partner) by telephone and email. The notification should include a copy of the notice of appeal, if available from the electronic docket, and should identify the date the notice was filed, the appellate court designation, and the specific judgment or order being appealed.
2. Client Notification. Notify Jennifer Chao at Penterra by telephone and follow-up email on the same business day. The telephone call should provide an initial summary of the filing and its implications; the follow-up email should include a copy of the notice of appeal and a brief written summary of next steps. The communication should advise Ms. Chao that the judgment is now subject to appellate review and that Penterra should consult with counsel before taking any commercial actions in reliance on the judgment during the pendency of the appeal.
3. Review of the Notice of Appeal. Obtain and review the notice of appeal to identify the specific judgment or order being appealed and the appellate court designation. Vantage's appeal would be taken to the Massachusetts Appeals Court, unless Vantage were to seek direct appellate review by the Supreme Judicial Court under G.L. c. 211A, § 10 (which is discretionary and granted only in rare circumstances involving questions of first impression or matters of public importance). Confirm the accuracy of the filing and determine whether it complies with the formal requirements of Mass. R. App. P. 3.
B. Appellate Preparation
In the event of an appeal, the engagement team should take the following preparatory steps:
1. Preliminary Assessment of Appellate Issues. Prepare a preliminary assessment of the likely appellate issues that Vantage may raise. For reference, the Post-Decision Analysis Memorandum dated July 20, 2022, prepared by Hannah Brinkley, identifies several potential grounds that Vantage might advance on appeal, including: (a) challenges to the court's application of the written-modification clause doctrine, particularly whether the Kapoor Email could constitute a written modification under a more relaxed standard; (b) challenges to the court's integration clause analysis, including whether the court gave insufficient weight to the parties' course of dealing; and (c) challenges to the court's dismissal of Vantage's promissory estoppel counterclaim, including whether the court applied an overly stringent standard for establishing a "clear and definite promise." The Post-Decision Analysis Memorandum concluded that, while these arguments are not frivolous, they face significant obstacles given the strength of the integration clause and the written-amendment provision in the EDA, as well as the well-established Massachusetts precedent cited by the court.
2. Engagement Decision. Determine whether Penterra wishes Calderwood & Harkness LLP to continue representation on appeal or whether appellate specialist counsel should be engaged. This decision should be discussed with Jennifer Chao promptly. If appellate specialist counsel is to be retained, Linda Osei should provide recommendations and facilitate the transition. If Calderwood & Harkness LLP is to handle the appeal, consider whether to designate a partner with appellate experience as the lead appellate attorney.
3. Budget Revision. Revise the matter budget to account for appellate proceedings. The original estimated budget of $750,000 to $1,200,000 was scoped through trial in the Superior Court and did not encompass appellate proceedings. An appeal to the Massachusetts Appeals Court, including briefing, oral argument preparation, and oral argument, would likely require an additional estimated budget in the range of $150,000 to $350,000, depending on the complexity of the issues and the extent of the record. A revised budget estimate should be prepared and communicated to the Client for approval before substantive appellate work commences.
C. Record Assembly
If Vantage files a notice of appeal, the parties will be required to assemble the record for appellate review. The following steps should be taken in coordination with the Superior Court Clerk's office:
1. Record Appendix. Under Massachusetts Rules of Appellate Procedure, Rule 18, the appellant is responsible for preparing the record appendix. However, the appellee (Penterra) has the right to supplement the appendix and should carefully review the appellant's designation of record materials to ensure that all relevant documents are included.
2. Key Record Items. The following items are likely to be included in the record appendix and should be readily accessible in the matter file:
• The Exclusive Distribution Agreement dated July 1, 2017, including all exhibits (in particular, Exhibit A — Territory Definition, which lists the six New England states);
• The January 12, 2018 email from Steven Kapoor (Penterra VP, Commercial Operations) to Donald R. Farnham (Vantage Managing Member & CEO) (the "Kapoor Email");
• The Affidavit of Steven Kapoor, filed in support of Penterra's Motion for Summary Judgment;
• The Affidavit of Rachel Mendez (Penterra Director, Distribution Strategy), filed in support of Penterra's Motion for Summary Judgment;
• The deposition transcript of Donald R. Farnham, taken on October 18, 2021;
• The deposition transcript of Steven Kapoor, taken on November 2, 2021;
• The deposition transcript of Rachel Mendez, taken on November 19, 2021;
• The deposition transcript of Brian Kopec (Vantage VP, Operations), taken on December 7, 2021;
• Penterra's Motion for Summary Judgment and supporting brief (filed February 11, 2022);
• Vantage's Cross-Motion for Summary Judgment and supporting brief (filed February 25, 2022);
• Penterra's Opposition to Vantage's Cross-Motion for Summary Judgment (filed March 18, 2022);
• Vantage's Opposition to Penterra's Motion for Summary Judgment (filed March 18, 2022);
• All reply briefs filed in connection with the cross-motions;
• The court's Memorandum of Decision and Order dated July 15, 2022; and
• The Final Judgment entered August 5, 2022.
3. Coordination with the Clerk. Patrick Gallagher should contact the Clerk's office for the Business Litigation Session to confirm the procedures for record assembly and to ensure that all docket entries and filings are accurately reflected in the record.
VI. Judgment Preservation Considerations
A. Ensuring Enforceability of the Declaratory Judgment
The declaratory judgment entered in this case establishes, as a matter of law, that Vantage's exclusive territory under the EDA is limited to the six New England states enumerated in Exhibit A to the EDA: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Upon the judgment becoming final and non-appealable, Penterra should treat this declaration as binding and may proceed to finalize its distribution arrangements for territories outside the six New England states without risk of a claim by Vantage.
Of particular commercial significance, Penterra may proceed to finalize the distribution arrangement with Meridian National Distributors, Inc. ("Meridian") for the tri-state area (New York, New Jersey, and Pennsylvania) upon expiration of the appeal period without an appeal being filed. As background, Penterra executed a term sheet with Meridian on February 15, 2021, which contemplated the appointment of Meridian as Penterra's exclusive distributor for pharmaceutical products in New York, New Jersey, and Pennsylvania. The term sheet was expressly contingent on the resolution of this litigation and had been stalled pending the outcome of the summary judgment proceedings. Linda Osei should advise Jennifer Chao that, once the judgment is final, Penterra may proceed with the Meridian arrangement. However, we recommend that Penterra's transactional counsel review the term sheet and any draft definitive agreements with Meridian before execution to ensure consistency with the terms of the declaratory judgment.
If Vantage files an appeal, the situation becomes more nuanced. A notice of appeal does not automatically stay the enforcement of the judgment. Under Massachusetts Rules of Appellate Procedure, Rule 6, a stay of enforcement pending appeal may be obtained from the trial court or, under certain circumstances, from the appellate court. Unless and until Vantage obtains a stay, the declaratory judgment remains enforceable. However, as a practical matter, Penterra may wish to exercise caution about entering into a long-term distribution agreement with Meridian while an appeal is pending, given the potential (however remote) that the appellate court could reverse the trial court's decision. This is a business judgment that should be discussed with the Client.
B. EDA Expiration and Renewal Status
A separate but related issue concerns the status of the EDA itself. The original five-year term of the EDA commenced on July 1, 2017 and expired on June 30, 2022 — that is, before the entry of Final Judgment on August 5, 2022. The EDA contained a renewal provision that provided for two successive one-year auto-renewal options (extending the term through June 30, 2023 and June 30, 2024, respectively), unless either party gave one hundred eighty (180) days' prior written notice of non-renewal.
It is important to confirm with Jennifer Chao whether Penterra provided timely non-renewal notice. One hundred eighty days prior to June 30, 2022 would be approximately January 1, 2022. If Penterra sent a non-renewal notice on or before that date, the EDA expired by its terms on June 30, 2022, and Vantage's distribution rights within the New England Territory have ceased. If, however, Penterra did not send timely non-renewal notice, the EDA would have auto-renewed for the first one-year extension period, extending through June 30, 2023, and Vantage would continue to hold exclusive distribution rights within the six New England states through that date.
This issue is separate from the territorial scope question that was the subject of the litigation. The court's declaratory judgment addressed only the geographic scope of the Territory; it did not address the duration of the EDA or Vantage's ongoing rights within the New England Territory. Linda Osei should follow up with Jennifer Chao to confirm the renewal status and, if necessary, advise Penterra on any steps required to terminate or manage the EDA relationship going forward.
C. Costs and Fees
The declaratory judgment entered by the court did not include an award of attorneys' fees or costs in favor of either party. This is consistent with the general rule in Massachusetts, which follows the American Rule — that is, each party bears its own attorneys' fees and costs absent a contractual or statutory provision to the contrary. A review of the EDA confirms that it does not contain a prevailing-party fee-shifting clause or any other provision that would entitle the prevailing party to recover its litigation costs or attorneys' fees from the non-prevailing party.
No further action on fee recovery is required. The matter budget should reflect the full cost of the litigation as borne by Penterra, with no offset for anticipated fee recovery.
VII. Document Retention
All pleadings, briefs, discovery materials (including deposition transcripts, interrogatory responses, document productions, and expert reports, if any), correspondence, internal and external communications, work product memoranda, research memoranda, and the court's orders and judgments should be retained in the matter file (matter no. 1018-00007) in accordance with Calderwood & Harkness LLP's Document Retention Policy (Firm Policy No. DR-2019-04, as amended). Under that policy, files for completed litigation matters are retained for a minimum of seven (7) years from the date the matter is closed, unless a longer retention period is required by applicable law, regulation, or client instruction.
Electronic copies of the following critical documents have been saved to the matter folder on the firm's document management system (Stonefield Systems, matter workspace 1018-00007):
• The Final Judgment entered August 5, 2022;
• The Memorandum of Decision and Order issued by Hon. Diane L. Costigan, J., dated July 15, 2022;
• The Client Advisory Letter dated July 18, 2022 from Linda Osei to Jennifer Chao;
• The Post-Decision Analysis Memorandum dated July 20, 2022 prepared by Hannah Brinkley; and
• This Judgment Preservation and Appeal-Period Tracking Memorandum dated August 8, 2022.
All additional documents generated during the appeal monitoring period (including docket printouts from each monitoring check and any client correspondence) should be saved to the same matter workspace as they are created.
VIII. Update Log
The following log tracks all updates to this memorandum throughout the appeal monitoring period. Entries will be added as docket checks are conducted and new information becomes available.
Post-Deadline Notation — September 6, 2022:
Docket for Docket No. 2184-CV-01537-BLS reviewed via MassCourts eFiling at close of business on September 6, 2022. No notice of appeal, motion for extension of time to file notice of appeal, or post-judgment motion (including any motion to reconsider, motion for new trial under Mass. R. Civ. P. 59, or motion for relief from judgment under Mass. R. Civ. P. 60) was filed by Vantage Medical Distribution, LLC or by Hargrove, Sinclair & Polk LLP at any point during the appeal period. The appeal period has expired. The Final Judgment entered August 5, 2022 is now final and non-appealable. Linda Osei and Priya Anand notified by email at 5:47 PM on September 6, 2022. Client notification letter to Jennifer Chao (General Counsel, Penterra Pharmaceuticals Corp.) to follow on September 7, 2022.
IX. Conclusion and Recommendation
The appeal deadline — including the weekend and holiday extension under Massachusetts Rules of Appellate Procedure, Rule 14(a) and Massachusetts Rules of Civil Procedure, Rule 6(a) — passed at the close of business on September 6, 2022 without Vantage Medical Distribution, LLC or its counsel at Hargrove, Sinclair & Polk LLP filing a notice of appeal, a motion for extension of time to file a notice of appeal, or any post-judgment motion that might have tolled the appeal period. The declaratory judgment entered by the Superior Court, Business Litigation Session, Suffolk County, on August 5, 2022 in favor of Penterra Pharmaceuticals Corp. is now final and non-appealable.
Based on the foregoing, I respectfully recommend the following next steps:
1. Client Notification. Linda Osei should send a brief communication to Jennifer Chao, General Counsel of Penterra Pharmaceuticals Corp., confirming the finality of the judgment. The communication should advise Ms. Chao that: (a) the appeal period has expired without any filing by Vantage; (b) the Final Judgment is now final and non-appealable; (c) Penterra may proceed with its commercial plans for the tri-state territory (New York, New Jersey, and Pennsylvania), including finalization of the Meridian National Distributors, Inc. distribution arrangement; and (d) Penterra should confirm the renewal status of the EDA with respect to Vantage's ongoing distribution rights within the New England Territory.
2. Matter Closing. This matter is now ready for closing in accordance with Calderwood & Harkness LLP's matter-closing procedures. A Matter Closing Memorandum should be prepared and circulated for review and approval by Linda Osei and Priya Anand. This Judgment Preservation and Appeal-Period Tracking Memorandum should be filed in the matter closing file alongside the Matter Closing Memorandum and the other key documents identified in Section VII above.
3. Final Billing. Priya Anand should coordinate with the billing team to ensure that all outstanding time entries and disbursements have been posted and that a final invoice is prepared and sent to Penterra.
This memorandum will remain a part of the permanent matter file for reference purposes.
Prepared by:
________________________________________
Patrick Gallagher Working Associate Calderwood & Harkness LLP
Reviewed by:
________________________________________
Hannah Brinkley Lead Associate (Backup Monitor) Calderwood & Harkness LLP
Distribution:
Linda Osei, Responsible Partner Priya Anand, Billing Partner
PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT This memorandum is protected by the attorney-client privilege and the work product doctrine. It is intended solely for the internal use of the attorneys and staff of Calderwood & Harkness LLP working on Matter No. 1018-00007. Unauthorized disclosure is strictly prohibited.
Date | Event / Action Item
August 5, 2022 | Final Judgment entered by the Clerk of the Superior Court, Business Litigation Session — the appeal clock begins running on this date.
August 8, 2022 | Date of this memorandum; calendar entries set in Calderwood & Harkness LLP's firm docketing system for all monitoring dates; initial docket check confirmed (no post-judgment filings detected).
August 19, 2022 | Mid-period check: Monitor the electronic docket for Docket No. 2184-CV-01537-BLS for any post-judgment motions, notice of appeal, or motion for extension of time to file notice of appeal. This check occurs fourteen (14) days after entry of Final Judgment.
September 1, 2022 | Pre-deadline check: Review the docket to confirm that no notice of appeal or post-judgment motion has been filed. This check occurs twenty-seven (27) days after entry of Final Judgment and provides three business days of lead time before the strict thirty-day anniversary.
September 4, 2022 | Strict thirty-day anniversary of judgment entry. This date falls on a Sunday; the court is closed. No filing can occur on this date.
September 5, 2022 | Labor Day — Massachusetts state and federal courts are closed. No filing can occur on this date.
September 6, 2022 | Extended deadline (next business day after the thirty-day anniversary). Conduct a final docket check at or shortly before the close of business to confirm whether a notice of appeal, motion for extension of time, or any other post-judgment filing has been made by Vantage or HSP.
September 7, 2022 | If no appeal or post-judgment motion has been filed, prepare a confirmation memorandum to the engagement team and a client notification letter to Jennifer Chao (General Counsel, Penterra) confirming that the judgment is final and non-appealable.
Date | Update | By
August 8, 2022 | Memorandum prepared and circulated to Linda Osei and Priya Anand. Calendar entries set in firm docketing system for monitoring dates (August 19, September 1, and September 6, 2022). Initial docket check conducted — no post-judgment filings detected on the docket for Docket No. 2184-CV-01537-BLS. | P. Gallagher
August 19, 2022 | [Placeholder for mid-period docket check result] | P. Gallagher
September 1, 2022 | [Placeholder for pre-deadline docket check result] | P. Gallagher
September 6, 2022 | [Placeholder for final docket check result] | P. Gallagher

MEMORANDUM

MATTER NO.: 1018-00007

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