Here's a great summary of the jury's decision as reported by (the esteemed) Lawfighter on Yahoo:
If you've read Igen's press release this afternoon, you already know the pertinent details.
I received a call from Ricihope2000 shortly after noon that a verdict had been reached. He and I drove immediately to the courthouse in Greenbelt, both of us worrying that we would be too late. When I saw the deliveryman enter the building ahead of me with the jury's lunch order, I knew we would not miss the main event. Rendering a verdict is important, but lunch . . .
The lawyers and their staff were milling around the fourth floor corridor outside Judge Messitte's ceremonial courtroom. They were talking on cell phones, mingling with one another and exchanging nervous smiles. I met Ricihope, JTinformed and several other shareholders inside. We sat and waited for the jury to finish their lunch. My stomach growled with hunger.
At 1:13 p.m., the jurors entered. Some smiled, others were stone-faced. They appeared relaxed, confident and pleased to be done. The courtroom deputy asked if they had reached a verdict. "Yes," they replied. "Who will speak for you," she inquired? The jury said, "our forelady." The forelady then raised her hand and displayed a manila envelope which she handed to the deputy. The deputy took the envelope to Judge Messitte who opened it and began reading the verdict form. During the next three minutes, he moistened his fingers and turned the pages occasionally brushing the papers against his microphone. The only other sound I heard was that of my heart pounding in my chest.
When he had finished reading the judge sent the form back to the forelady. Beginning at 1:16 p.m., the deputy then read each question and the forelady stood and replied with each answer in a firm voice.
"Do you find that Roche breached one or more of its royalty obligations by failing to keep full and accurate records or by underpaying royalties.”
“Yes.”
A sound of approval rippled through the Igen spectators as they realized this was certainly a material breach of the License.
“Do you find that Igen is entitled to compensatory damages?”
“Yes.”
“State the amount of the compensatory damages that you award Igen for this breach.”
“Twelve million dollars” said the forelady.
The crowd murmured again.
The deputy and forelady continued their exchanges. When the jury awarded Igen $5,798,427 in damages for improper rental surcharge deductions, the spectators chuckled and looked at one another quizically. When it was announced that Igen was to receive $807,525 in damages for Roche’s out of Field sales, there were similar exchanges. The forelady then announced that Roche had failed to insure compliance by its affiliates and sublicensees. As instructed by the judge, the jury awarded nominal damages on this count, but instead of the $1 suggested, it awarded $10. Another breach registered in the crowd. Similarly, the jury awarded Igen $10 for Roche’s predetermined breach when it improved its own ES assays after the launch of the Elecsys 1010 system
Here, the mood shifted momentarily. The jury ruled that Roche’s Cobas Systems did not compete in a material way with the Elecsys products that use Igen’s Origen technology. It next concluded that Roche did not breach its “best efforts” obligations by failing to include certain immunoassays on the menu of the Elecsys systems. Lastly, the jury did not fault Roche for failing to include DNA Probe Assays on the ECL based systems. These three quick adverse rulings brought quiet mutters from the crowd which sensed a verdict going awry.
The concern quickly dissipated when the panel ruled that Roche breached its duty of good faith and fair dealing by not returning to Igen the rights to use ECL for DNA Probes after Roche decided not to put such tests on its ECL-based systems. When compensatory damages of $82 million were awarded, a stream of approval pulsed through the gallery.
“Do you find that Roche breached the Agreement by failing to provide Igen with “Improvements” to ECL?”
“Yes.” The forelady then named the improvements.
The entire Elecsys 1010 instrument. The entire Elecsys 2010 instrument. The ECL module of Roche’s brand new E-170 instrument. All aspects of the ECL assays that Roche developed under the Agreement. All aspects of the instruments and assays that arose out of the Elecsys program. Roche’s PCR technology. Roche’s method for coating magnetic beads.
The spectators nodded. “Yes, yes” one exclaimed! The excitement abated only momentarily as the jury awarded nominal damages of $10 as instructed for Roche’s failure to share Improvements and Patents, and for settling the Serono suit without Igen’s permission. The next wave formed ready to knock Roche to its knees.
(continued)
“Do you find that Roche Diagnostics materially breached one or more material obligations of the Agreement.”
The forelady displayed no emotion. When the deputy had finished reading the question, she looked up from her sheet and simply said, “Yes.”
“That’s it” cried Ricihope2000! “We’ve got the termination!”
The spectators looked around at one another in knowing appreciation of the monetary significance of that one “Yes.”
The deputy continued. “Please identify each of those breaches on which you based your determination of materiality.”
With each succeeding “Yes,” the forelady cinched Roche’s fate. Royalty related breaches. Breach of Field Restrictions. Breach of duty of good faith and fair dealing by failing to return rights to DNA Probe Assays. Breach of obligation to provide Improvements. Breach of obligation to obtain Igen’s consent to settle the Serono Action in Delaware.
Ricihope2000 counted on his fingers. “That’s six” he numbered, “on top of what Judge Messitte gave us.”
I turned to page 16 of 19 on the Special Verdict Form. Unfair Competition. My right hand quivered slightly as I prepared my pen to write. The deputy spoke.
“Do you find that Roche Diagnostics engaged in unfair competition?”
The forelady began to nod her head before the question was complete. “Yes” she said clearly. More glances and grins were shot around the courtroom. The jury then imposed the required compensatory damages of $4.8 million.
“Do you find that punitive damages are appropriate?”
Again the forelady replied, “Yes.”
The deputy then spoke, haltingly, mixing a word or two. “State the amount of punitive damages that you award to Igen as a result of unfair competition.”
The only sound in the courtroom was the forelady straightening the papers in her hand. Every eye stared intently at her standing figure. Her blondish hair was illuminated by the incandescence from above.
She spoke without hesitation. “Four hundred million dollars”
Although the Igen lawyers continued to fixate on her and write their notes, some of the crowd left the courtroom and those who remained seemed disinterested in Roche’s counterclaims. The forelady announced that Igen had not breached the Agreement by granting to Eisai rights in Japan that were inconsistent with Roche’s rights. When she stated that Igen should pay Roche $500,000 for breaching the implied duty of good faith and fair dealing by interfering or failing to cooperate with Roche’s exercise of license rights, one spectator remarked, “who cares.” When she ruled that Igen had not breached the Agreement by failing to share the Meso Improvements with Roche, another witness exclaimed, “good, good.”
At 1:31 p.m., the verdict was complete. Judge Messitte asked the forelady if that was the jury’s verdict and if it was her verdict as well. Still standing, she replied with the now familiar “Yes” and sat down. The judge then called each juror by name. They stood one by one and affirmed their decision. Judge Messitte thanked them for their extraordinary public service and said he would meet with them later.
Igen’s attorneys stood, and grinning broadly, shook each other’s hands. They walked to the other side of the courtroom and did likewise with counsel for Roche, Nancy Sennett and John Dawson.
Roche’s corporate counsel from Switzerland, there to hear the verdict, turned beet red, gathered up his belongings and rushed from the courtroom. There he encountered a dozen or more spectators, each with a cell phone attached to his or her ear.
The contest was over. The exuberance was just beginning.
The posts reported above can be found starting at:
messages.yahoo.com
My compliments and thanks to Lawfighter for this great summary as well as all his hard work reporting on the case.
Peter |
