1018-00007 · Penterra Pharmaceuticals Corp · Pre-Litigation

conflict-check-memorandum.docx DOCUMENT Litigation

32 / 35 ← → ✕

CALDERWOOD & HARKNESS LLP

CONFIDENTIAL — ATTORNEY WORK PRODUCT

INTERNAL MEMORANDUM — CONFLICT CHECK

STATUS: CLEARED — NO CONFLICTS IDENTIFIED

I. PURPOSE OF MEMORANDUM

This memorandum documents the results of the conflict-of-interest check conducted in connection with the proposed engagement of Calderwood & Harkness LLP ("the Firm" or "C&H") by Penterra Pharmaceuticals Corp. ("Penterra" or "PPC") in a declaratory-judgment action to be filed against Vantage Medical Distribution, LLC ("Vantage" or "VMD") in the Superior Court of Massachusetts, Business Litigation Session, Suffolk County. The purpose of this memorandum is to confirm compliance with the Firm's internal conflict-clearance procedures as well as the Massachusetts Rules of Professional Conduct, and to provide a permanent record for the Firm's conflict-clearance file.

The conflict check was initiated on March 24, 2021, following an inquiry received that day from Jennifer Chao, Esq., General Counsel of Penterra, to Linda Osei regarding the potential representation of Penterra in connection with a dispute arising under an Exclusive Distribution Agreement dated July 1, 2017, between Penterra and Vantage. Ms. Chao's inquiry was documented in the Firm's matter-opening system on the same date and assigned a preliminary matter number for conflict-checking purposes.

This memorandum was prepared by Patrick Gallagher, Associate, Litigation Department, and has been reviewed and approved by Linda Osei, Partner, Litigation Department, who serves as the Responsible Partner for this engagement. The conflict check was conducted in accordance with Calderwood & Harkness LLP Policy Memorandum No. 2019-07 (Conflict Clearance Procedures) and the Firm's supplemental guidance on new-client onboarding for publicly traded entities.

II. PROPOSED ENGAGEMENT SUMMARY

The following is a summary of the proposed engagement, based on information provided by Jennifer Chao, Esq. during her initial inquiry and a follow-up telephone conference held on March 25, 2021, between Ms. Chao, Linda Osei, and Patrick Gallagher.

Client: Penterra Pharmaceuticals Corp., a corporation organized and existing under the laws of the State of Delaware, publicly traded on the Nasdaq Stock Market under the ticker symbol PTRA, with its principal executive offices located at 400 Carnegie Center Drive, Suite 600, Princeton, New Jersey 08540. Penterra is a specialty pharmaceutical company focused on the development and commercialization of therapeutics in the oncology and autoimmune-disease segments.

Nature of Matter: The proposed engagement involves the filing and prosecution of a declaratory-judgment action seeking a judicial declaration that the exclusive distribution territory under the Exclusive Distribution Agreement dated July 1, 2017, between Penterra and Vantage (the "Distribution Agreement") is limited to the six New England states — specifically, Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont — as defined in Exhibit A to the Distribution Agreement. Penterra contends that the Distribution Agreement does not grant Vantage exclusive distribution rights in New York, New Jersey, or Pennsylvania (the "Tri-State Region"), notwithstanding Vantage's recent assertions to the contrary. The dispute arose in February 2021 when Vantage objected in writing to Penterra's negotiations with Meridian National Distributors, Inc. ("Meridian") for distribution of two Penterra products in the Tri-State Region. Penterra seeks declaratory relief to resolve the territorial scope of the Distribution Agreement before finalizing its arrangement with Meridian.

Adverse Party: Vantage Medical Distribution, LLC, a Massachusetts limited liability company, with its principal office located at 75 Cabot Road, Suite 310, Medford, Massachusetts 02155. Vantage is a regional pharmaceutical and medical-device distribution company operating primarily in the northeastern United States.

Opposing Counsel (Anticipated): Based on a March 12, 2021, demand letter received by Penterra on Hargrove, Sinclair & Polk LLP letterhead, Penterra anticipates that Vantage will be represented by Hargrove, Sinclair & Polk LLP ("HSP"), located at 200 Ashbury Asset Advisors, Suite 1800, Boston, Massachusetts 02109. The demand letter was signed by Kenneth M. Rourke, Partner at HSP, with a copy notation to Alicia Fontaine, Associate Counsel at HSP. The Firm has accordingly included HSP and its identified personnel in this conflict check.

Proposed C&H Engagement Team:

• Linda Osei — Partner, Litigation Department — Responsible Partner

• Priya Anand — Partner, Litigation Department — Billing Partner

• Hannah Brinkley — Senior Associate, Litigation Department — Lead Associate

• Patrick Gallagher — Associate, Litigation Department — Working Associate

Engagement Letter Date (Anticipated): March 29, 2021. A draft engagement letter has been prepared by the Firm's client-intake coordinator and is under review by Ms. Osei, pending clearance of this conflict check.

Fee Arrangement: The proposed engagement will be billed on an hourly basis at the Firm's standard rates, subject to a seven percent (7%) discount on all professional fees. The parties have discussed an estimated budget range of $750,000 to $1,200,000, which encompasses pre-litigation dispute resolution efforts, the filing and prosecution of the declaratory-judgment action through trial, and one level of appellate review if necessary. This budget estimate is preliminary and may be revised upon further assessment of the scope of discovery and the anticipated litigation posture of Vantage.

III. ENTITIES AND INDIVIDUALS SEARCHED

In accordance with the Firm's conflict-clearance procedures, a comprehensive list of names, entities, affiliates, and related parties was compiled and submitted for search through the Firm's electronic conflict-checking database system (IntegriCheck v.6.2). The search was designed to capture all current and former client representations, all adverse-party designations, all related-party and witness designations, and all matter cross-references across all Firm offices. The following is a complete list of the names and entities searched, organized by category.

A. Client and Client Affiliates

The following names, entity variations, and affiliated persons and entities were searched in connection with the proposed client, Penterra Pharmaceuticals Corp.:

1. Penterra Pharmaceuticals Corp. — including the following name variations: "Penterra," "PPC," "Penterra Pharma," "Penterra Pharmaceuticals," and "Penterra Pharm Corp."

2. Dr. Marcus Lindholm — Chief Executive Officer of Penterra Pharmaceuticals Corp.

3. Jennifer Chao, Esq. — General Counsel of Penterra Pharmaceuticals Corp.; the Firm's point of contact for this engagement.

4. Steven Kapoor — Vice President, Commercial Operations, Penterra Pharmaceuticals Corp.

5. Rachel Mendez — Director of Distribution & Logistics, Penterra Pharmaceuticals Corp.

6. Penterra Nasdaq ticker symbol: PTRA — searched as a cross-reference to identify any existing securities, regulatory, or corporate matters referencing Penterra's publicly traded equity.

7. Penterra EIN: 26-3841097 — searched to verify against any prior tax-related, corporate-structuring, or transactional matters.

8. Whitfield & Pryce LLP (New York, New York) — Penterra's independent auditor, as identified in Penterra's most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission.

9. Atlantic Shield Insurance Co. (domiciled in Connecticut) — Penterra's directors' and officers' liability insurance carrier, as identified by Ms. Chao during the initial intake conversation.

10. Commonwealth Mutual Assurance Corp. (domiciled in Pennsylvania) — Penterra's commercial general liability insurance carrier, as identified by Ms. Chao.

11. CT Statutory Agent Services — 155 Federal Street, Suite 700, Boston, Massachusetts 02110 — Penterra's registered agent for service of process in the Commonwealth of Massachusetts.

B. Adverse Party and Adverse-Party Affiliates

The following names, entity variations, and affiliated persons and entities were searched in connection with the adverse party, Vantage Medical Distribution, LLC:

1. Vantage Medical Distribution, LLC — including the following name variations: "Vantage," "VMD," "Vantage Medical," "Vantage Med Dist," and "Vantage Distribution."

2. Vantage EIN: 45-2917683 — searched to verify against any prior matters referencing Vantage by its federal employer identification number.

3. Donald R. Farnham — Managing Member and Chief Executive Officer of Vantage Medical Distribution, LLC.

4. Lisa Petrangelo — Chief Operating Officer of Vantage Medical Distribution, LLC.

5. Brian Kopec — Outside Sales Director, Vantage Medical Distribution, LLC. Mr. Kopec has been identified by Penterra as a key individual involved in the territorial-scope dispute.

6. Cranmer, Hodges & Associates, P.C. (Medford, Massachusetts) — Vantage's outside accounting firm, as identified by Penterra's counsel based on public filings and prior correspondence.

C. Opposing Counsel

The following law firm and individual attorney names were searched in connection with anticipated opposing counsel:

1. Hargrove, Sinclair & Polk LLP — including the following name variations: "HSP," "Hargrove Sinclair," "Hargrove, Sinclair & Polk," and "Hargrove Sinclair Polk."

2. Kenneth M. Rourke — Partner, Hargrove, Sinclair & Polk LLP; anticipated lead counsel for Vantage.

3. Alicia Fontaine — Associate Counsel, Hargrove, Sinclair & Polk LLP; anticipated associate counsel for Vantage.

D. Related Third Parties

The following third-party entities and individuals were searched based on their relevance to the underlying facts of the proposed engagement:

1. Meridian National Distributors, Inc. — a New York corporation, with principal offices at 520 Seventh Avenue, 12th Floor, New York, New York 10018. Meridian is the proposed tri-state distributor with whom Penterra has been negotiating a distribution arrangement for the Tri-State Region, the negotiations that triggered the current dispute with Vantage.

2. Thomas Welliver — President of Meridian National Distributors, Inc.

3. Oncalaris® (pegvisomant-axel) — one of the two Penterra pharmaceutical products at issue in the Distribution Agreement and the proposed Meridian arrangement. Searched as a product name to identify any prior matters involving this product.

4. Renuvesta® (cilosporin-beta) — the second Penterra pharmaceutical product at issue. Searched as a product name for the same purpose.

IV. SEARCH METHODOLOGY

The conflict check was conducted using the following procedures, each of which is described in further detail below:

Electronic Database Search. All names, entity variations, known affiliates, employer identification numbers, and product names identified in Section III above were entered into the Firm's electronic conflict-checking database, IntegriCheck v.6.2, on March 24, 2021. The IntegriCheck system maintains records of all current and former client matters, adverse parties, related parties, key witnesses, and co-counsel designations across all Calderwood & Harkness LLP offices, including the Firm's offices in Boston, New York, Washington, D.C., San Francisco, and London. The system also indexes lateral-hire disclosures and prior-firm representations submitted by all attorneys upon joining the Firm. The search was run with fuzzy-matching enabled (threshold set at 85%) to capture close name variants and potential misspellings. Each search result was reviewed individually and analyzed for relevance.

Practice Group Client List Review. In addition to the electronic database search, a supplemental manual check was performed by reviewing the current client lists maintained by the Firm's Litigation, Corporate & Securities, and Life Sciences & FDA Regulatory practice groups. These lists were reviewed to identify any representations that might not yet have been entered into IntegriCheck due to processing delays or that might be referenced under alternative naming conventions not captured by the electronic search. The review covered active matters as of March 24, 2021, as well as matters closed within the preceding three years.

Lateral Hire Records Review. The conflict-clearance records submitted by each member of the proposed engagement team upon joining Calderwood & Harkness LLP were retrieved and reviewed for any prior representations at their respective former firms that might give rise to a conflict of interest or a continuing duty of confidentiality with respect to any party, counsel, or individual identified in this matter. Specifically:

• Linda Osei joined C&H in 2012 from Durneval & Bayne LLP (New York). Her lateral disclosure was reviewed.

• Priya Anand joined C&H in 2015 from Colburn Patel LLP (Boston). Her lateral disclosure was reviewed.

• Hannah Brinkley joined C&H in 2018 from O'Meara & Quinn LLP (Boston). Her lateral disclosure was reviewed.

• Patrick Gallagher joined C&H in 2019 from Shaughnessy, Lake & Crane LLP (Providence, Rhode Island). His lateral disclosure was reviewed.

No prior representations by any team member at their former firms involving Penterra, Vantage, Meridian, or any individual or entity identified in Section III were found. No continuing duties of confidentiality to any relevant party were identified.

Timing. The electronic search was initiated at 2:47 p.m. on March 24, 2021, and the results were generated at 3:12 p.m. the same day. The manual review of practice group client lists was completed on March 25, 2021. The lateral-hire records review was completed on March 25, 2021. All results were compiled and analyzed on March 25–26, 2021, and are reported in Section V below.

V. RESULTS OF CONFLICT SEARCH

A. Penterra Pharmaceuticals Corp. and Affiliates

Result: No current or prior representations of Penterra Pharmaceuticals Corp. were identified in the Firm's conflict-checking database. The IntegriCheck search returned zero matches for "Penterra Pharmaceuticals Corp." or any of its name variations, its EIN, or its Nasdaq ticker symbol PTRA, across all matter categories (client, adverse party, related party, or witness) in all Firm offices.

Note: The Firm has not previously represented Penterra in any capacity — including litigation, transactional, regulatory, intellectual-property, or advisory matters. This engagement, if approved, will establish a new client relationship between the Firm and Penterra Pharmaceuticals Corp. In accordance with Firm policy, new-client intake procedures have been initiated concurrently with this conflict check. These procedures include, without limitation, anti-money-laundering ("AML") screening, know-your-client ("KYC") verification procedures applicable to publicly traded entities, review of Penterra's most recent SEC filings (including its Annual Report on Form 10-K for the fiscal year ended December 31, 2020, and its most recent Quarterly Report on Form 10-Q), and confirmation of Penterra's good standing in its state of incorporation (Delaware) and state of qualification (Massachusetts).

Individuals (Lindholm, Chao, Kapoor, Mendez): The IntegriCheck search returned no matches for Dr. Marcus Lindholm, Jennifer Chao, Steven Kapoor, or Rachel Mendez as clients, adverse parties, related parties, or witnesses in any current or former Firm matter. None of these individuals has been identified as a party or participant in any matter handled by any C&H office.

Whitfield & Pryce LLP (Penterra's Independent Auditor): The search returned no current adversity with Whitfield & Pryce LLP. The Firm has not represented Whitfield & Pryce in any capacity, and the Firm is not currently adverse to Whitfield & Pryce in any pending matter. No conflict is presented.

Atlantic Shield Insurance Co. (Penterra's D&O Insurer): The search returned no current or prior representation of Atlantic Shield Insurance Co. by the Firm. The Firm is not currently adverse to Atlantic Shield in any pending matter. No conflict is presented.

Commonwealth Mutual Assurance Corp. (Penterra's CGL Insurer): The search returned no current or prior representation of Commonwealth Mutual Assurance Corp. by the Firm. The Firm is not currently adverse to Commonwealth Mutual in any pending matter. No conflict is presented.

B. Vantage Medical Distribution, LLC and Affiliates

Result: No current or prior representations of Vantage Medical Distribution, LLC were identified in the Firm's conflict-checking database. The IntegriCheck search returned zero matches for "Vantage Medical Distribution, LLC" or any of its name variations, or its EIN, across all matter categories in all Firm offices. The Firm has never represented Vantage, and Vantage has never been designated as a related party or witness in any Firm matter.

Donald R. Farnham (Managing Member & CEO): The search returned no matches for Donald R. Farnham as a client, adverse party, related party, or witness in any current or former Firm matter. Mr. Farnham has no prior relationship with the Firm.

Lisa Petrangelo (COO): The search returned no matches for Lisa Petrangelo in any capacity in any current or former Firm matter.

Brian Kopec (Outside Sales Director): The search returned no matches for Brian Kopec in any capacity in any current or former Firm matter.

Cranmer, Hodges & Associates, P.C. (Vantage's Accountants): The search returned no matches for Cranmer, Hodges & Associates, P.C. as a current or former Firm client, adverse party, or related party. The Firm has had no prior dealings with this accounting firm.

C. Hargrove, Sinclair & Polk LLP and Personnel

Result: No current matter was identified in which C&H and HSP serve as co-counsel for the same client, or in which HSP represents an existing C&H client. There is no current collaborative or co-counsel relationship between the two firms that would create a conflict or impair the Firm's ability to advocate zealously against HSP on behalf of Penterra.

Kenneth M. Rourke (Lead Partner, HSP): The IntegriCheck search returned one historical record involving Mr. Rourke. Specifically, Mr. Rourke served as opposing counsel in the matter of Baxter Holdings, Inc. v. Northpoint Capital Group LLC, C&H matter number 1018-00007. In that matter, the Firm represented Baxter Holdings, Inc. in a breach-of-contract dispute in the United States District Court for the District of Massachusetts, and Mr. Rourke represented the defendant, Northpoint Capital Group LLC. The matter was fully resolved by settlement in 2018 and was closed in the Firm's system on October 15, 2018. There are no continuing obligations, no outstanding discovery issues, no pending enforcement proceedings, and no ongoing relationships arising from that matter. Mr. Rourke was adverse counsel in that prior matter, not a client of the Firm, and accordingly no duty of loyalty or confidentiality runs from the Firm to Mr. Rourke. No conflict of interest is identified with respect to Mr. Rourke.

Alicia Fontaine (Associate Counsel, HSP): The search returned no matches for Alicia Fontaine in any capacity in any current or former Firm matter.

D. Meridian National Distributors, Inc. and Thomas Welliver

Result: No current or prior representations of Meridian National Distributors, Inc. were identified in the Firm's conflict-checking database. The search returned zero matches for "Meridian National Distributors" or any name variations across all matter categories and all Firm offices.

Thomas Welliver (President of Meridian): The search returned no matches for Thomas Welliver as a client, adverse party, related party, or witness in any current or former Firm matter.

Note: Although Meridian is not a party to the proposed declaratory-judgment action, it is a significant interested non-party whose distribution arrangement with Penterra for the Tri-State Region is central to the underlying dispute. Meridian may emerge as a potential fact witness, or Penterra may ask the Firm to represent Meridian in a related capacity in the future. No conflict exists at this time with respect to Meridian. However, in the event that the Firm is subsequently asked to represent Meridian in any capacity, or if Meridian becomes a party or intervening party in the litigation, a supplemental conflict check should be conducted at that time to ensure continued compliance with applicable ethical obligations.

VI. ENGAGEMENT TEAM INDIVIDUAL CHECKS

In addition to the entity-level and individual-name searches described in Sections III through V above, each member of the proposed engagement team was individually reviewed for any prior personal or professional relationship with any party, counsel, or individual identified in this matter, including relationships predating their tenure at Calderwood & Harkness LLP.

A. Linda Osei — Responsible Partner

Ms. Osei has confirmed that she has no prior personal or professional relationship with any party, counsel, or individual identified in this matter. She has not previously represented Penterra, Vantage, Meridian, or any of their principals or officers in any capacity. She has not previously worked with or against Kenneth M. Rourke, Alicia Fontaine, or any other attorney at Hargrove, Sinclair & Polk LLP, other than the Baxter Holdings matter referenced in Section V.C above, in which her involvement was minimal (she served as a supervisory partner on that matter but had no substantive contact with Mr. Rourke). Review of Ms. Osei's lateral-hire disclosure from her prior firm, Durneval & Bayne LLP, revealed no former-firm conflicts relevant to this engagement. Cleared.

B. Priya Anand — Billing Partner

Ms. Anand has confirmed that she has no prior personal or professional relationship with any party, counsel, or individual identified in this matter. She has not previously represented or had any professional dealings with Penterra, Vantage, Meridian, or any of their principals or officers. She has not previously worked with or against any attorney at Hargrove, Sinclair & Polk LLP. Review of Ms. Anand's lateral-hire disclosure from her prior firm, Colburn Patel LLP, revealed no former-firm conflicts relevant to this engagement. Cleared.

C. Hannah Brinkley — Lead Associate

Ms. Brinkley has confirmed that she has no prior personal or professional relationship with any party, counsel, or individual identified in this matter. She has not previously represented or had any professional dealings with Penterra, Vantage, Meridian, or any of their principals or officers. She has not previously worked with or against any attorney at Hargrove, Sinclair & Polk LLP. Review of Ms. Brinkley's lateral-hire disclosure from her prior firm, O'Meara & Quinn LLP, revealed no former-firm conflicts relevant to this engagement. Cleared.

D. Patrick Gallagher — Working Associate

I confirm that I have no prior personal or professional relationship with any party, counsel, or individual identified in this matter. I have not previously represented or had any professional dealings with Penterra, Vantage, Meridian, or any of their principals or officers. I have not previously worked with or against any attorney at Hargrove, Sinclair & Polk LLP. Review of my lateral-hire disclosure from my prior firm, Shaughnessy, Lake & Crane LLP, revealed no former-firm conflicts relevant to this engagement. Cleared.

VII. JUDICIAL CONFLICTS CHECK

The proposed declaratory-judgment action is expected to be filed in the Superior Court of Massachusetts, Business Litigation Session, Suffolk County. In accordance with the Firm's conflict-clearance procedures, a review was conducted to determine whether any judicial conflicts exist that could require recusal of any justice or create an appearance of impropriety.

A review of the Firm's active and recently closed matters in the Business Litigation Session was conducted. The Firm currently has three active matters pending before the Business Litigation Session, none of which involves Penterra, Vantage, Meridian, or any party, counsel, or individual identified in this conflict check. The existence of other Firm matters before the same court does not create a conflict of interest.

Based on the current calendar and assignment rotations for the Business Litigation Session, the Honorable Diane L. Costigan, J., is the likely assigned justice for new civil filings during the relevant period. No member of the C&H engagement team has a familial, financial, or close personal relationship with Justice Costigan. No member of the engagement team has served as a law clerk or judicial intern for Justice Costigan. The Firm is not aware of any circumstance that would require Justice Costigan's recusal or that would create an appearance of impropriety in connection with the Firm's representation of Penterra before her.

No judicial conflicts have been identified.

VIII. ANALYSIS OF POTENTIAL ISSUES

Although no conflicts of interest have been identified, this Section provides a systematic analysis of the applicable rules of professional conduct to confirm that no ethical impediment to the proposed representation exists.

A. No Current-Client Conflict (Massachusetts Rule of Professional Conduct 1.7)

Massachusetts Rule of Professional Conduct 1.7 provides, in pertinent part, that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest — that is, if the representation of one client will be directly adverse to another client, or if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person, or by a personal interest of the lawyer.

Neither Vantage Medical Distribution, LLC, nor any of its principals (Donald R. Farnham, Lisa Petrangelo, or Brian Kopec), nor Hargrove, Sinclair & Polk LLP, nor Meridian National Distributors, Inc., nor any individual associated with the adverse side or any related third party, is a current client of Calderwood & Harkness LLP. No direct adversity to a current client is presented by the proposed representation. The Firm has reviewed its entire active client roster across all practice groups and all offices and has confirmed that no current client would be adversely affected, directly or indirectly, by the Firm's representation of Penterra in this matter.

Accordingly, no conflict exists under Rule 1.7.

B. No Former-Client Conflict (Massachusetts Rule of Professional Conduct 1.9)

Massachusetts Rule of Professional Conduct 1.9 provides, in pertinent part, that a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client, unless the former client gives informed consent confirmed in writing.

Neither Vantage Medical Distribution, LLC, nor any of its affiliates, principals, or officers is a former client of Calderwood & Harkness LLP. The Firm has never represented Vantage in any matter — litigation, transactional, regulatory, or advisory. No duty of loyalty or confidentiality to Vantage or its principals arises from any prior representation. Similarly, the Firm has never represented Meridian National Distributors, Inc. or any of its principals.

With respect to Kenneth M. Rourke of Hargrove, Sinclair & Polk LLP, as noted in Section V.C above, Mr. Rourke served as opposing counsel in the Baxter Holdings matter (C&H matter no. 1018-00007), which was closed in 2018. Mr. Rourke was adverse counsel in that prior matter — he was not a client of the Firm, and no attorney-client relationship existed or exists between the Firm and Mr. Rourke. Rule 1.9 does not restrict a lawyer from subsequently opposing a former adversary's counsel; the rule's protections extend to former clients, not to former opposing counsel. No conflict arises under Rule 1.9 by reason of the prior Baxter Holdings matter.

Accordingly, no conflict exists under Rule 1.9.

C. No Imputed Conflicts (Massachusetts Rule of Professional Conduct 1.10)

Massachusetts Rule of Professional Conduct 1.10 provides, in pertinent part, that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9.

As set forth in Section VI above, each member of the proposed engagement team has confirmed that he or she has no prior personal or professional relationship with any party, counsel, or individual identified in this matter. Each team member's lateral-hire disclosure was reviewed and no former-firm representations were identified that would create a conflict requiring imputation to the Firm. No member of the engagement team carries a conflict from a prior firm — whether screened or unscreened — that would be imputed to Calderwood & Harkness LLP under Rule 1.10.

Accordingly, no imputed conflict exists under Rule 1.10.

D. Positional / Issue Conflicts

In addition to the party-based conflict analysis required by Rules 1.7, 1.9, and 1.10, the Firm's conflict-clearance procedures require an assessment of whether any positional or issue conflict exists — that is, whether the Firm is currently taking, in another matter for a different client, a legal position that is directly contrary to a legal position that the Firm would be required to advance on behalf of Penterra in this matter.

The proposed declaratory-judgment action is likely to involve issues of contract interpretation, including the enforceability and scope of exclusive distribution territories, the applicability of written-modification clauses (including anti-oral-modification or "no-waiver" provisions), the effect of integration clauses on extrinsic evidence, and potentially the application of the implied covenant of good faith and fair dealing. A review of the Firm's active litigation matters was conducted to determine whether the Firm is taking an inconsistent legal position on any of these issues in any other pending matter.

No positional conflict has been identified. The Firm is not currently advancing, in any other pending matter, a legal position that is materially inconsistent with the positions that Penterra is expected to take in this declaratory-judgment action. Specifically, the Firm is not arguing in any other matter that an exclusive distribution territory defined by a written exhibit to a distribution agreement should be construed to encompass territories not listed in the exhibit, nor is the Firm arguing in any other matter that oral modifications may override a written integration clause under circumstances analogous to those presented here.

Accordingly, no positional or issue conflict exists.

IX. CONCLUSION AND CLEARANCE

Based on the comprehensive conflict-of-interest search conducted on March 24, 2021, using the Firm's IntegriCheck v.6.2 electronic database, the supplemental manual review of practice-group client lists, the review of lateral-hire conflict disclosures for each member of the proposed engagement team, and the analysis of applicable Massachusetts Rules of Professional Conduct set forth above, no conflict of interest or potential conflict of interest has been identified that would preclude Calderwood & Harkness LLP from representing Penterra Pharmaceuticals Corp. in the proposed declaratory-judgment action against Vantage Medical Distribution, LLC.

This matter is cleared for engagement.

The following post-clearance administrative steps should be taken promptly:

1. A new-client intake file should be opened for Penterra Pharmaceuticals Corp. under matter number 1018-00007, and all new-client onboarding procedures — including AML/KYC verification, engagement-letter execution, and billing-arrangement documentation — should be completed prior to the commencement of substantive legal work.

2. The engagement letter should be finalized and transmitted to Jennifer Chao, Esq. for execution on behalf of Penterra, with a target execution date of March 29, 2021.

3. If additional parties, counsel, witnesses, or other individuals or entities are identified during the course of the representation — including, without limitation, any third-party distributors, co-defendants, intervenors, expert witnesses, or governmental agencies — supplemental conflict checks should be conducted promptly and documented in a supplemental memorandum appended to this file.

4. If Meridian National Distributors, Inc. or any of its principals seeks representation by the Firm in connection with this matter or any related matter, a full supplemental conflict check must be performed before any engagement is undertaken.

5. A copy of this memorandum should be retained in the Firm's permanent conflict-clearance file for matter number 1018-00007.

X. APPROVAL

Prepared by:

________________________________________

Patrick Gallagher Associate, Litigation Department Calderwood & Harkness LLP

Date: March 26, 2021

Reviewed and Approved by:

________________________________________

Linda Osei Partner, Litigation Department Calderwood & Harkness LLP

Date: March 26, 2021

General Counsel's Office Notification: A copy of this memorandum has been transmitted to the Calderwood & Harkness LLP General Counsel's Office for inclusion in the Firm's new-matter file, in accordance with Firm Policy Memorandum No. 2019-07, Section 4.3 (Notification Requirements for New-Client Engagements).

CONFIDENTIAL — ATTORNEY WORK PRODUCT — This memorandum is an internal document of Calderwood & Harkness LLP prepared for the purpose of identifying and analyzing potential conflicts of interest in connection with the proposed representation described herein. It is protected by the attorney work-product doctrine and is not intended for distribution outside the Firm. Any unauthorized disclosure, copying, or distribution of this memorandum is strictly prohibited.

TO:	Linda Osei, Responsible Partner, Litigation Department
FROM:	Patrick Gallagher, Associate, Litigation Department
DATE:	March 26, 2021
RE:	Conflict Check — Proposed Representation of Penterra Pharmaceuticals Corp. in Declaratory Judgment Action Against Vantage Medical Distribution, LLC
MATTER NO.:	1018-00007
OFFICE:	Calderwood & Harkness LLP, 1 Federal Street, 35th Floor, Boston, MA 02110

CALDERWOOD & HARKNESS LLP
CONFIDENTIAL — ATTORNEY WORK PRODUCT
INTERNAL MEMORANDUM — CONFLICT CHECK
STATUS: CLEARED — NO CONFLICTS IDENTIFIED
I. PURPOSE OF MEMORANDUM
This memorandum documents the results of the conflict-of-interest check conducted in connection with the proposed engagement of Calderwood & Harkness LLP ("the Firm" or "C&H") by Penterra Pharmaceuticals Corp. ("Penterra" or "PPC") in a declaratory-judgment action to be filed against Vantage Medical Distribution, LLC ("Vantage" or "VMD") in the Superior Court of Massachusetts, Business Litigation Session, Suffolk County. The purpose of this memorandum is to confirm compliance with the Firm's internal conflict-clearance procedures as well as the Massachusetts Rules of Professional Conduct, and to provide a permanent record for the Firm's conflict-clearance file.
The conflict check was initiated on March 24, 2021, following an inquiry received that day from Jennifer Chao, Esq., General Counsel of Penterra, to Linda Osei regarding the potential representation of Penterra in connection with a dispute arising under an Exclusive Distribution Agreement dated July 1, 2017, between Penterra and Vantage. Ms. Chao's inquiry was documented in the Firm's matter-opening system on the same date and assigned a preliminary matter number for conflict-checking purposes.
This memorandum was prepared by Patrick Gallagher, Associate, Litigation Department, and has been reviewed and approved by Linda Osei, Partner, Litigation Department, who serves as the Responsible Partner for this engagement. The conflict check was conducted in accordance with Calderwood & Harkness LLP Policy Memorandum No. 2019-07 (Conflict Clearance Procedures) and the Firm's supplemental guidance on new-client onboarding for publicly traded entities.
II. PROPOSED ENGAGEMENT SUMMARY
The following is a summary of the proposed engagement, based on information provided by Jennifer Chao, Esq. during her initial inquiry and a follow-up telephone conference held on March 25, 2021, between Ms. Chao, Linda Osei, and Patrick Gallagher.
Client: Penterra Pharmaceuticals Corp., a corporation organized and existing under the laws of the State of Delaware, publicly traded on the Nasdaq Stock Market under the ticker symbol PTRA, with its principal executive offices located at 400 Carnegie Center Drive, Suite 600, Princeton, New Jersey 08540. Penterra is a specialty pharmaceutical company focused on the development and commercialization of therapeutics in the oncology and autoimmune-disease segments.
Nature of Matter: The proposed engagement involves the filing and prosecution of a declaratory-judgment action seeking a judicial declaration that the exclusive distribution territory under the Exclusive Distribution Agreement dated July 1, 2017, between Penterra and Vantage (the "Distribution Agreement") is limited to the six New England states — specifically, Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont — as defined in Exhibit A to the Distribution Agreement. Penterra contends that the Distribution Agreement does not grant Vantage exclusive distribution rights in New York, New Jersey, or Pennsylvania (the "Tri-State Region"), notwithstanding Vantage's recent assertions to the contrary. The dispute arose in February 2021 when Vantage objected in writing to Penterra's negotiations with Meridian National Distributors, Inc. ("Meridian") for distribution of two Penterra products in the Tri-State Region. Penterra seeks declaratory relief to resolve the territorial scope of the Distribution Agreement before finalizing its arrangement with Meridian.
Adverse Party: Vantage Medical Distribution, LLC, a Massachusetts limited liability company, with its principal office located at 75 Cabot Road, Suite 310, Medford, Massachusetts 02155. Vantage is a regional pharmaceutical and medical-device distribution company operating primarily in the northeastern United States.
Opposing Counsel (Anticipated): Based on a March 12, 2021, demand letter received by Penterra on Hargrove, Sinclair & Polk LLP letterhead, Penterra anticipates that Vantage will be represented by Hargrove, Sinclair & Polk LLP ("HSP"), located at 200 Ashbury Asset Advisors, Suite 1800, Boston, Massachusetts 02109. The demand letter was signed by Kenneth M. Rourke, Partner at HSP, with a copy notation to Alicia Fontaine, Associate Counsel at HSP. The Firm has accordingly included HSP and its identified personnel in this conflict check.
Proposed C&H Engagement Team:
•  Linda Osei — Partner, Litigation Department — Responsible Partner
•  Priya Anand — Partner, Litigation Department — Billing Partner
•  Hannah Brinkley — Senior Associate, Litigation Department — Lead Associate
•  Patrick Gallagher — Associate, Litigation Department — Working Associate
Engagement Letter Date (Anticipated): March 29, 2021. A draft engagement letter has been prepared by the Firm's client-intake coordinator and is under review by Ms. Osei, pending clearance of this conflict check.
Fee Arrangement: The proposed engagement will be billed on an hourly basis at the Firm's standard rates, subject to a seven percent (7%) discount on all professional fees. The parties have discussed an estimated budget range of $750,000 to $1,200,000, which encompasses pre-litigation dispute resolution efforts, the filing and prosecution of the declaratory-judgment action through trial, and one level of appellate review if necessary. This budget estimate is preliminary and may be revised upon further assessment of the scope of discovery and the anticipated litigation posture of Vantage.
III. ENTITIES AND INDIVIDUALS SEARCHED
In accordance with the Firm's conflict-clearance procedures, a comprehensive list of names, entities, affiliates, and related parties was compiled and submitted for search through the Firm's electronic conflict-checking database system (IntegriCheck v.6.2). The search was designed to capture all current and former client representations, all adverse-party designations, all related-party and witness designations, and all matter cross-references across all Firm offices. The following is a complete list of the names and entities searched, organized by category.
A. Client and Client Affiliates
The following names, entity variations, and affiliated persons and entities were searched in connection with the proposed client, Penterra Pharmaceuticals Corp.:
1.  Penterra Pharmaceuticals Corp. — including the following name variations: "Penterra," "PPC," "Penterra Pharma," "Penterra Pharmaceuticals," and "Penterra Pharm Corp."
2.  Dr. Marcus Lindholm — Chief Executive Officer of Penterra Pharmaceuticals Corp.
3.  Jennifer Chao, Esq. — General Counsel of Penterra Pharmaceuticals Corp.; the Firm's point of contact for this engagement.
4.  Steven Kapoor — Vice President, Commercial Operations, Penterra Pharmaceuticals Corp.
5.  Rachel Mendez — Director of Distribution & Logistics, Penterra Pharmaceuticals Corp.
6.  Penterra Nasdaq ticker symbol: PTRA — searched as a cross-reference to identify any existing securities, regulatory, or corporate matters referencing Penterra's publicly traded equity.
7.  Penterra EIN: 26-3841097 — searched to verify against any prior tax-related, corporate-structuring, or transactional matters.
8.  Whitfield & Pryce LLP (New York, New York) — Penterra's independent auditor, as identified in Penterra's most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission.
9.  Atlantic Shield Insurance Co. (domiciled in Connecticut) — Penterra's directors' and officers' liability insurance carrier, as identified by Ms. Chao during the initial intake conversation.
10.  Commonwealth Mutual Assurance Corp. (domiciled in Pennsylvania) — Penterra's commercial general liability insurance carrier, as identified by Ms. Chao.
11.  CT Statutory Agent Services — 155 Federal Street, Suite 700, Boston, Massachusetts 02110 — Penterra's registered agent for service of process in the Commonwealth of Massachusetts.
B. Adverse Party and Adverse-Party Affiliates
The following names, entity variations, and affiliated persons and entities were searched in connection with the adverse party, Vantage Medical Distribution, LLC:
1.  Vantage Medical Distribution, LLC — including the following name variations: "Vantage," "VMD," "Vantage Medical," "Vantage Med Dist," and "Vantage Distribution."
2.  Vantage EIN: 45-2917683 — searched to verify against any prior matters referencing Vantage by its federal employer identification number.
3.  Donald R. Farnham — Managing Member and Chief Executive Officer of Vantage Medical Distribution, LLC.
4.  Lisa Petrangelo — Chief Operating Officer of Vantage Medical Distribution, LLC.
5.  Brian Kopec — Outside Sales Director, Vantage Medical Distribution, LLC. Mr. Kopec has been identified by Penterra as a key individual involved in the territorial-scope dispute.
6.  Cranmer, Hodges & Associates, P.C. (Medford, Massachusetts) — Vantage's outside accounting firm, as identified by Penterra's counsel based on public filings and prior correspondence.
C. Opposing Counsel
The following law firm and individual attorney names were searched in connection with anticipated opposing counsel:
1.  Hargrove, Sinclair & Polk LLP — including the following name variations: "HSP," "Hargrove Sinclair," "Hargrove, Sinclair & Polk," and "Hargrove Sinclair Polk."
2.  Kenneth M. Rourke — Partner, Hargrove, Sinclair & Polk LLP; anticipated lead counsel for Vantage.
3.  Alicia Fontaine — Associate Counsel, Hargrove, Sinclair & Polk LLP; anticipated associate counsel for Vantage.
D. Related Third Parties
The following third-party entities and individuals were searched based on their relevance to the underlying facts of the proposed engagement:
1.  Meridian National Distributors, Inc. — a New York corporation, with principal offices at 520 Seventh Avenue, 12th Floor, New York, New York 10018. Meridian is the proposed tri-state distributor with whom Penterra has been negotiating a distribution arrangement for the Tri-State Region, the negotiations that triggered the current dispute with Vantage.
2.  Thomas Welliver — President of Meridian National Distributors, Inc.
3.  Oncalaris® (pegvisomant-axel) — one of the two Penterra pharmaceutical products at issue in the Distribution Agreement and the proposed Meridian arrangement. Searched as a product name to identify any prior matters involving this product.
4.  Renuvesta® (cilosporin-beta) — the second Penterra pharmaceutical product at issue. Searched as a product name for the same purpose.
IV. SEARCH METHODOLOGY
The conflict check was conducted using the following procedures, each of which is described in further detail below:
Electronic Database Search. All names, entity variations, known affiliates, employer identification numbers, and product names identified in Section III above were entered into the Firm's electronic conflict-checking database, IntegriCheck v.6.2, on March 24, 2021. The IntegriCheck system maintains records of all current and former client matters, adverse parties, related parties, key witnesses, and co-counsel designations across all Calderwood & Harkness LLP offices, including the Firm's offices in Boston, New York, Washington, D.C., San Francisco, and London. The system also indexes lateral-hire disclosures and prior-firm representations submitted by all attorneys upon joining the Firm. The search was run with fuzzy-matching enabled (threshold set at 85%) to capture close name variants and potential misspellings. Each search result was reviewed individually and analyzed for relevance.
Practice Group Client List Review. In addition to the electronic database search, a supplemental manual check was performed by reviewing the current client lists maintained by the Firm's Litigation, Corporate & Securities, and Life Sciences & FDA Regulatory practice groups. These lists were reviewed to identify any representations that might not yet have been entered into IntegriCheck due to processing delays or that might be referenced under alternative naming conventions not captured by the electronic search. The review covered active matters as of March 24, 2021, as well as matters closed within the preceding three years.
Lateral Hire Records Review. The conflict-clearance records submitted by each member of the proposed engagement team upon joining Calderwood & Harkness LLP were retrieved and reviewed for any prior representations at their respective former firms that might give rise to a conflict of interest or a continuing duty of confidentiality with respect to any party, counsel, or individual identified in this matter. Specifically:
•  Linda Osei joined C&H in 2012 from Durneval & Bayne LLP (New York). Her lateral disclosure was reviewed.
•  Priya Anand joined C&H in 2015 from Colburn Patel LLP (Boston). Her lateral disclosure was reviewed.
•  Hannah Brinkley joined C&H in 2018 from O'Meara & Quinn LLP (Boston). Her lateral disclosure was reviewed.
•  Patrick Gallagher joined C&H in 2019 from Shaughnessy, Lake & Crane LLP (Providence, Rhode Island). His lateral disclosure was reviewed.
No prior representations by any team member at their former firms involving Penterra, Vantage, Meridian, or any individual or entity identified in Section III were found. No continuing duties of confidentiality to any relevant party were identified.
Timing. The electronic search was initiated at 2:47 p.m. on March 24, 2021, and the results were generated at 3:12 p.m. the same day. The manual review of practice group client lists was completed on March 25, 2021. The lateral-hire records review was completed on March 25, 2021. All results were compiled and analyzed on March 25–26, 2021, and are reported in Section V below.
V. RESULTS OF CONFLICT SEARCH
A. Penterra Pharmaceuticals Corp. and Affiliates
Result: No current or prior representations of Penterra Pharmaceuticals Corp. were identified in the Firm's conflict-checking database. The IntegriCheck search returned zero matches for "Penterra Pharmaceuticals Corp." or any of its name variations, its EIN, or its Nasdaq ticker symbol PTRA, across all matter categories (client, adverse party, related party, or witness) in all Firm offices.
Note: The Firm has not previously represented Penterra in any capacity — including litigation, transactional, regulatory, intellectual-property, or advisory matters. This engagement, if approved, will establish a new client relationship between the Firm and Penterra Pharmaceuticals Corp. In accordance with Firm policy, new-client intake procedures have been initiated concurrently with this conflict check. These procedures include, without limitation, anti-money-laundering ("AML") screening, know-your-client ("KYC") verification procedures applicable to publicly traded entities, review of Penterra's most recent SEC filings (including its Annual Report on Form 10-K for the fiscal year ended December 31, 2020, and its most recent Quarterly Report on Form 10-Q), and confirmation of Penterra's good standing in its state of incorporation (Delaware) and state of qualification (Massachusetts).
Individuals (Lindholm, Chao, Kapoor, Mendez): The IntegriCheck search returned no matches for Dr. Marcus Lindholm, Jennifer Chao, Steven Kapoor, or Rachel Mendez as clients, adverse parties, related parties, or witnesses in any current or former Firm matter. None of these individuals has been identified as a party or participant in any matter handled by any C&H office.
Whitfield & Pryce LLP (Penterra's Independent Auditor): The search returned no current adversity with Whitfield & Pryce LLP. The Firm has not represented Whitfield & Pryce in any capacity, and the Firm is not currently adverse to Whitfield & Pryce in any pending matter. No conflict is presented.
Atlantic Shield Insurance Co. (Penterra's D&O Insurer): The search returned no current or prior representation of Atlantic Shield Insurance Co. by the Firm. The Firm is not currently adverse to Atlantic Shield in any pending matter. No conflict is presented.
Commonwealth Mutual Assurance Corp. (Penterra's CGL Insurer): The search returned no current or prior representation of Commonwealth Mutual Assurance Corp. by the Firm. The Firm is not currently adverse to Commonwealth Mutual in any pending matter. No conflict is presented.
B. Vantage Medical Distribution, LLC and Affiliates
Result: No current or prior representations of Vantage Medical Distribution, LLC were identified in the Firm's conflict-checking database. The IntegriCheck search returned zero matches for "Vantage Medical Distribution, LLC" or any of its name variations, or its EIN, across all matter categories in all Firm offices. The Firm has never represented Vantage, and Vantage has never been designated as a related party or witness in any Firm matter.
Donald R. Farnham (Managing Member & CEO): The search returned no matches for Donald R. Farnham as a client, adverse party, related party, or witness in any current or former Firm matter. Mr. Farnham has no prior relationship with the Firm.
Lisa Petrangelo (COO): The search returned no matches for Lisa Petrangelo in any capacity in any current or former Firm matter.
Brian Kopec (Outside Sales Director): The search returned no matches for Brian Kopec in any capacity in any current or former Firm matter.
Cranmer, Hodges & Associates, P.C. (Vantage's Accountants): The search returned no matches for Cranmer, Hodges & Associates, P.C. as a current or former Firm client, adverse party, or related party. The Firm has had no prior dealings with this accounting firm.
C. Hargrove, Sinclair & Polk LLP and Personnel
Result: No current matter was identified in which C&H and HSP serve as co-counsel for the same client, or in which HSP represents an existing C&H client. There is no current collaborative or co-counsel relationship between the two firms that would create a conflict or impair the Firm's ability to advocate zealously against HSP on behalf of Penterra.
Kenneth M. Rourke (Lead Partner, HSP): The IntegriCheck search returned one historical record involving Mr. Rourke. Specifically, Mr. Rourke served as opposing counsel in the matter of Baxter Holdings, Inc. v. Northpoint Capital Group LLC, C&H matter number 1018-00007. In that matter, the Firm represented Baxter Holdings, Inc. in a breach-of-contract dispute in the United States District Court for the District of Massachusetts, and Mr. Rourke represented the defendant, Northpoint Capital Group LLC. The matter was fully resolved by settlement in 2018 and was closed in the Firm's system on October 15, 2018. There are no continuing obligations, no outstanding discovery issues, no pending enforcement proceedings, and no ongoing relationships arising from that matter. Mr. Rourke was adverse counsel in that prior matter, not a client of the Firm, and accordingly no duty of loyalty or confidentiality runs from the Firm to Mr. Rourke. No conflict of interest is identified with respect to Mr. Rourke.
Alicia Fontaine (Associate Counsel, HSP): The search returned no matches for Alicia Fontaine in any capacity in any current or former Firm matter.
D. Meridian National Distributors, Inc. and Thomas Welliver
Result: No current or prior representations of Meridian National Distributors, Inc. were identified in the Firm's conflict-checking database. The search returned zero matches for "Meridian National Distributors" or any name variations across all matter categories and all Firm offices.
Thomas Welliver (President of Meridian): The search returned no matches for Thomas Welliver as a client, adverse party, related party, or witness in any current or former Firm matter.
Note: Although Meridian is not a party to the proposed declaratory-judgment action, it is a significant interested non-party whose distribution arrangement with Penterra for the Tri-State Region is central to the underlying dispute. Meridian may emerge as a potential fact witness, or Penterra may ask the Firm to represent Meridian in a related capacity in the future. No conflict exists at this time with respect to Meridian. However, in the event that the Firm is subsequently asked to represent Meridian in any capacity, or if Meridian becomes a party or intervening party in the litigation, a supplemental conflict check should be conducted at that time to ensure continued compliance with applicable ethical obligations.
VI. ENGAGEMENT TEAM INDIVIDUAL CHECKS
In addition to the entity-level and individual-name searches described in Sections III through V above, each member of the proposed engagement team was individually reviewed for any prior personal or professional relationship with any party, counsel, or individual identified in this matter, including relationships predating their tenure at Calderwood & Harkness LLP.
A. Linda Osei — Responsible Partner
Ms. Osei has confirmed that she has no prior personal or professional relationship with any party, counsel, or individual identified in this matter. She has not previously represented Penterra, Vantage, Meridian, or any of their principals or officers in any capacity. She has not previously worked with or against Kenneth M. Rourke, Alicia Fontaine, or any other attorney at Hargrove, Sinclair & Polk LLP, other than the Baxter Holdings matter referenced in Section V.C above, in which her involvement was minimal (she served as a supervisory partner on that matter but had no substantive contact with Mr. Rourke). Review of Ms. Osei's lateral-hire disclosure from her prior firm, Durneval & Bayne LLP, revealed no former-firm conflicts relevant to this engagement. Cleared.
B. Priya Anand — Billing Partner
Ms. Anand has confirmed that she has no prior personal or professional relationship with any party, counsel, or individual identified in this matter. She has not previously represented or had any professional dealings with Penterra, Vantage, Meridian, or any of their principals or officers. She has not previously worked with or against any attorney at Hargrove, Sinclair & Polk LLP. Review of Ms. Anand's lateral-hire disclosure from her prior firm, Colburn Patel LLP, revealed no former-firm conflicts relevant to this engagement. Cleared.
C. Hannah Brinkley — Lead Associate
Ms. Brinkley has confirmed that she has no prior personal or professional relationship with any party, counsel, or individual identified in this matter. She has not previously represented or had any professional dealings with Penterra, Vantage, Meridian, or any of their principals or officers. She has not previously worked with or against any attorney at Hargrove, Sinclair & Polk LLP. Review of Ms. Brinkley's lateral-hire disclosure from her prior firm, O'Meara & Quinn LLP, revealed no former-firm conflicts relevant to this engagement. Cleared.
D. Patrick Gallagher — Working Associate
I confirm that I have no prior personal or professional relationship with any party, counsel, or individual identified in this matter. I have not previously represented or had any professional dealings with Penterra, Vantage, Meridian, or any of their principals or officers. I have not previously worked with or against any attorney at Hargrove, Sinclair & Polk LLP. Review of my lateral-hire disclosure from my prior firm, Shaughnessy, Lake & Crane LLP, revealed no former-firm conflicts relevant to this engagement. Cleared.
VII. JUDICIAL CONFLICTS CHECK
The proposed declaratory-judgment action is expected to be filed in the Superior Court of Massachusetts, Business Litigation Session, Suffolk County. In accordance with the Firm's conflict-clearance procedures, a review was conducted to determine whether any judicial conflicts exist that could require recusal of any justice or create an appearance of impropriety.
A review of the Firm's active and recently closed matters in the Business Litigation Session was conducted. The Firm currently has three active matters pending before the Business Litigation Session, none of which involves Penterra, Vantage, Meridian, or any party, counsel, or individual identified in this conflict check. The existence of other Firm matters before the same court does not create a conflict of interest.
Based on the current calendar and assignment rotations for the Business Litigation Session, the Honorable Diane L. Costigan, J., is the likely assigned justice for new civil filings during the relevant period. No member of the C&H engagement team has a familial, financial, or close personal relationship with Justice Costigan. No member of the engagement team has served as a law clerk or judicial intern for Justice Costigan. The Firm is not aware of any circumstance that would require Justice Costigan's recusal or that would create an appearance of impropriety in connection with the Firm's representation of Penterra before her.
No judicial conflicts have been identified.
VIII. ANALYSIS OF POTENTIAL ISSUES
Although no conflicts of interest have been identified, this Section provides a systematic analysis of the applicable rules of professional conduct to confirm that no ethical impediment to the proposed representation exists.
A. No Current-Client Conflict (Massachusetts Rule of Professional Conduct 1.7)
Massachusetts Rule of Professional Conduct 1.7 provides, in pertinent part, that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest — that is, if the representation of one client will be directly adverse to another client, or if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person, or by a personal interest of the lawyer.
Neither Vantage Medical Distribution, LLC, nor any of its principals (Donald R. Farnham, Lisa Petrangelo, or Brian Kopec), nor Hargrove, Sinclair & Polk LLP, nor Meridian National Distributors, Inc., nor any individual associated with the adverse side or any related third party, is a current client of Calderwood & Harkness LLP. No direct adversity to a current client is presented by the proposed representation. The Firm has reviewed its entire active client roster across all practice groups and all offices and has confirmed that no current client would be adversely affected, directly or indirectly, by the Firm's representation of Penterra in this matter.
Accordingly, no conflict exists under Rule 1.7.
B. No Former-Client Conflict (Massachusetts Rule of Professional Conduct 1.9)
Massachusetts Rule of Professional Conduct 1.9 provides, in pertinent part, that a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client, unless the former client gives informed consent confirmed in writing.
Neither Vantage Medical Distribution, LLC, nor any of its affiliates, principals, or officers is a former client of Calderwood & Harkness LLP. The Firm has never represented Vantage in any matter — litigation, transactional, regulatory, or advisory. No duty of loyalty or confidentiality to Vantage or its principals arises from any prior representation. Similarly, the Firm has never represented Meridian National Distributors, Inc. or any of its principals.
With respect to Kenneth M. Rourke of Hargrove, Sinclair & Polk LLP, as noted in Section V.C above, Mr. Rourke served as opposing counsel in the Baxter Holdings matter (C&H matter no. 1018-00007), which was closed in 2018. Mr. Rourke was adverse counsel in that prior matter — he was not a client of the Firm, and no attorney-client relationship existed or exists between the Firm and Mr. Rourke. Rule 1.9 does not restrict a lawyer from subsequently opposing a former adversary's counsel; the rule's protections extend to former clients, not to former opposing counsel. No conflict arises under Rule 1.9 by reason of the prior Baxter Holdings matter.
Accordingly, no conflict exists under Rule 1.9.
C. No Imputed Conflicts (Massachusetts Rule of Professional Conduct 1.10)
Massachusetts Rule of Professional Conduct 1.10 provides, in pertinent part, that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9.
As set forth in Section VI above, each member of the proposed engagement team has confirmed that he or she has no prior personal or professional relationship with any party, counsel, or individual identified in this matter. Each team member's lateral-hire disclosure was reviewed and no former-firm representations were identified that would create a conflict requiring imputation to the Firm. No member of the engagement team carries a conflict from a prior firm — whether screened or unscreened — that would be imputed to Calderwood & Harkness LLP under Rule 1.10.
Accordingly, no imputed conflict exists under Rule 1.10.
D. Positional / Issue Conflicts
In addition to the party-based conflict analysis required by Rules 1.7, 1.9, and 1.10, the Firm's conflict-clearance procedures require an assessment of whether any positional or issue conflict exists — that is, whether the Firm is currently taking, in another matter for a different client, a legal position that is directly contrary to a legal position that the Firm would be required to advance on behalf of Penterra in this matter.
The proposed declaratory-judgment action is likely to involve issues of contract interpretation, including the enforceability and scope of exclusive distribution territories, the applicability of written-modification clauses (including anti-oral-modification or "no-waiver" provisions), the effect of integration clauses on extrinsic evidence, and potentially the application of the implied covenant of good faith and fair dealing. A review of the Firm's active litigation matters was conducted to determine whether the Firm is taking an inconsistent legal position on any of these issues in any other pending matter.
No positional conflict has been identified. The Firm is not currently advancing, in any other pending matter, a legal position that is materially inconsistent with the positions that Penterra is expected to take in this declaratory-judgment action. Specifically, the Firm is not arguing in any other matter that an exclusive distribution territory defined by a written exhibit to a distribution agreement should be construed to encompass territories not listed in the exhibit, nor is the Firm arguing in any other matter that oral modifications may override a written integration clause under circumstances analogous to those presented here.
Accordingly, no positional or issue conflict exists.
IX. CONCLUSION AND CLEARANCE
Based on the comprehensive conflict-of-interest search conducted on March 24, 2021, using the Firm's IntegriCheck v.6.2 electronic database, the supplemental manual review of practice-group client lists, the review of lateral-hire conflict disclosures for each member of the proposed engagement team, and the analysis of applicable Massachusetts Rules of Professional Conduct set forth above, no conflict of interest or potential conflict of interest has been identified that would preclude Calderwood & Harkness LLP from representing Penterra Pharmaceuticals Corp. in the proposed declaratory-judgment action against Vantage Medical Distribution, LLC.
This matter is cleared for engagement.
The following post-clearance administrative steps should be taken promptly:
1.  A new-client intake file should be opened for Penterra Pharmaceuticals Corp. under matter number 1018-00007, and all new-client onboarding procedures — including AML/KYC verification, engagement-letter execution, and billing-arrangement documentation — should be completed prior to the commencement of substantive legal work.
2.  The engagement letter should be finalized and transmitted to Jennifer Chao, Esq. for execution on behalf of Penterra, with a target execution date of March 29, 2021.
3.  If additional parties, counsel, witnesses, or other individuals or entities are identified during the course of the representation — including, without limitation, any third-party distributors, co-defendants, intervenors, expert witnesses, or governmental agencies — supplemental conflict checks should be conducted promptly and documented in a supplemental memorandum appended to this file.
4.  If Meridian National Distributors, Inc. or any of its principals seeks representation by the Firm in connection with this matter or any related matter, a full supplemental conflict check must be performed before any engagement is undertaken.
5.  A copy of this memorandum should be retained in the Firm's permanent conflict-clearance file for matter number 1018-00007.
X. APPROVAL
Prepared by:
________________________________________
Patrick Gallagher Associate, Litigation Department Calderwood & Harkness LLP
Date: March 26, 2021
Reviewed and Approved by:
________________________________________
Linda Osei Partner, Litigation Department Calderwood & Harkness LLP
Date: March 26, 2021
General Counsel's Office Notification: A copy of this memorandum has been transmitted to the Calderwood & Harkness LLP General Counsel's Office for inclusion in the Firm's new-matter file, in accordance with Firm Policy Memorandum No. 2019-07, Section 4.3 (Notification Requirements for New-Client Engagements).
CONFIDENTIAL — ATTORNEY WORK PRODUCT — This memorandum is an internal document of Calderwood & Harkness LLP prepared for the purpose of identifying and analyzing potential conflicts of interest in connection with the proposed representation described herein. It is protected by the attorney work-product doctrine and is not intended for distribution outside the Firm. Any unauthorized disclosure, copying, or distribution of this memorandum is strictly prohibited.
TO: | Linda Osei, Responsible Partner, Litigation Department
FROM: | Patrick Gallagher, Associate, Litigation Department
DATE: | March 26, 2021
RE: | Conflict Check — Proposed Representation of Penterra Pharmaceuticals Corp. in Declaratory Judgment Action Against Vantage Medical Distribution, LLC
MATTER NO.: | 1018-00007
OFFICE: | Calderwood & Harkness LLP, 1 Federal Street, 35th Floor, Boston, MA 02110