SmithKline Beecham Corporation, dba GlaxoSmithKline v. Abbott Laboratories, No. 4:2007cv05702 - Document 522 (N.D. Cal. 2011)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS 489 MOTION FOR ENTRY OF JUDGMENT. Signed by Judge Claudia Wilken on 7/8/2011. (ndr, COURT STAFF) (Filed on 7/8/2011)
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SmithKline Beecham Corporation, dba GlaxoSmithKline v. Abbott Laboratories Doc. 522 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 SMITHKLINE BEECHAM CORPORATION, doing business as GLAXOSMITHKLINE, No. C 07-5702 CW 5 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR ENTRY OF JUDGMENT (Docket No. 489) Plaintiff, 6 v. 7 8 9 ABBOTT LABORATORIES, Defendant. / United States District Court For the Northern District of California 10 11 Plaintiff Smithkline Beecham Corporation, doing business as 12 GlaxoSmithKline (GSK), moves for entry of judgment. 13 Abbott Laboratories opposes the motion in part. 14 taken under submission on the papers. 15 submitted by the parties, the Court GRANTS GSK’s motion in part and 16 DENIES it in part. 17 18 Defendant The motion was Having considered the papers BACKGROUND Because the Court’s January 14, 2011 Order Denying Abbott’s 19 Motions for Summary Judgment amply recites the background of this 20 case, the Court offers a truncated discussion below. 21 GSK brought four claims against Abbott: (1) violation of the 22 Sherman Act, 15 U.S.C. § 2; (2) breach of the covenant of good 23 faith and fair dealing; (3) violation of the North Carolina Unfair 24 and Deceptive Trade Practices Act (UDTPA), N.C. Gen. Stat. § 75- 25 1.1; and (4) violation of North Carolina’s prohibition on 26 monopolization, N.C. Gen. Stat. § 75-2.1. 27 A jury trial in this action began on February 28, 2011. 28 March 24, 2011, before the case was submitted to the jury, Abbott On Dockets.Justia.com 1 moved for judgment as a matter of law. 2 The Court did not grant the motion and submitted the case to the 3 jury. 4 See Fed. R. Civ. P. 50(a). On March 30, 2011, the jury rendered its verdict. The jury 5 found for Abbott on GSK’s § 2 claim, but for GSK on its claim for 6 breach of the implied covenant. 7 breached the implied covenant that inhered to the parties’ Norvir 8 license agreement and did so through “grossly negligent conduct.” 9 For this, the jury awarded GSK $3,486,240.00 in damages. United States District Court For the Northern District of California 10 11 12 The jury concluded that Abbott For GSK’s UDTPA claim, the jury was asked whether Abbott committed any of the three following acts:1 a. During the negotiation of the Norvir Boosting License, 13 Abbott was considering how to use its control over Norvir 14 to limit competition with Kaletra and deliberately 15 withheld this from GSK. 16 b. Abbott inequitably asserted its power over Norvir by 17 increasing Norvir’s price by 400 percent to undermine and 18 disrupt Lexiva’s launch and future sales. 19 c. Abbott manipulated the timing of the 400-percent Norvir 20 price increase in order to disrupt Lexiva’s launch and 21 undermine Lexiva’s future sales. 22 23 24 25 26 27 28 1 A fourth question, regarding whether Abbott monopolized or attempted to monopolize the market in which Kaletra competes, was included in the preliminary jury instructions. The Court did not submit this question to the jury because the parties agreed it was redundant. 2 1 These questions were based on GSK’s proposed jury instructions.2 2 The jury concluded that GSK did not meet its burden to prove that 3 Abbott committed the second or third acts. 4 Abbott committed the first act, but that this conduct was not the 5 proximate cause of injury to GSK. 6 7 The jury found that DISCUSSION GSK asks the Court to enter judgment as follows: (1) for 8 Abbott on GSK’s § 2 claim; (2) for GSK, in the amount of 9 $4,549,590.96, on its claim for breach of the implied covenant; United States District Court For the Northern District of California 10 (3) for GSK, in the amount of $11,522,070.96, on its UDTPA claim; 11 and (4) for Abbott on GSK’s claim under N.C. Gen. Stat. § 75-2.1. 12 The amount sought by GSK on its breach of the implied covenant 13 claim includes pre-judgment interest. 14 motion, except to the extent that GSK seeks judgment in its favor 15 on its UDTPA claim. 16 Abbott does not oppose GSK’s To prevail on a UDTPA claim, “a plaintiff must show: (1) an 17 unfair or deceptive act or practice, (2) in or affecting commerce, 18 and (3) which proximately caused injury.” 19 Homes of N.C., Inc., 362 N.C. 63, 72 (2007). 20 practice is unfair or deceptive usually depends upon the facts of 21 each case and the impact the practice has in the marketplace.” 22 Marshall v. Miller, 302 N.C. 539, 548 (1981) (citation omitted). Walker v. Fleetwood “Whether a trade 23 2 27 GSK explicitly stated that the factual questions posed to the jury reflected the bases of its UDTPA claim. During a discussion about the jury instructions at the final pretrial conference, GSK’s counsel stated, “We believe the . . . questions that were in the proposed . . . jury instructions that your Honor passed out are the right ones, because those are the things that we contend violate the North Carolina unfair competition statute.” Feb. 8, 2011 Tr. at 26:19-22. 28 3 24 25 26 1 “A practice is unfair when it offends established public policy as 2 well as when the practice is immoral, unethical, oppressive, 3 unscrupulous, or substantially injurious to consumers.” 4 (citation omitted). 5 question of law for a court. 6 “jury determines in what amount, if any, the complaining party is 7 injured and whether the occurrence was the proximate cause of those 8 injuries.” 9 Barbee v. Atl. Marine Sales & Serv., 115 N.C. App. 641, 647 Id. Whether an act is unfair or deceptive is a Walker, 362 N.C. at 71. However, a Ausley v. Bishop, 133 N.C. App. 210, 217 (1999) (citing United States District Court For the Northern District of California 10 (1994)); see also G.P. Publ’ns, Inc. v. Quebecor Printing-St. Paul, 11 Inc., 125 N.C. App. 424, 442 (1997) (affirming denial of JNOV 12 motion on UDTPA claim for which jury found that defendant committed 13 the alleged unfair act but that the act did not proximately cause 14 harm to plaintiff). 15 As noted above, GSK provided factual questions that reflected 16 the bases of its UDTPA claim. 17 concluded that GSK did not prove that Abbott increased Norvir’s 18 price by 400 percent to undermine and disrupt Lexiva’s launch. 19 did GSK prove that Abbott manipulated the timing of the Norvir 20 price increase to disrupt GSK’s launch of Lexiva. 21 found that Abbott deliberately withheld its intent to use its 22 control over Norvir to limit competition. 23 that this act was not the proximate cause of injury to GSK. 24 the Court need not decide whether this act constituted an unfair or 25 deceptive practice under the UDTPA. 26 27 28 Based on those questions, the jury Nor The jury only However, the jury found Thus, Nevertheless, GSK insists that the jury’s finding that Abbott engaged in grossly negligent conduct when it breached the implied 4 1 covenant of good faith and fair dealing warrants judgment in GSK’s 2 favor on its UDTPA claim. 3 GSK’s UDTPA claim. 4 committed an unfair or deceptive act, as defined by the UDTPA, 5 because it does not speak to the breach’s impact on the 6 marketplace, which is a factor to be considered. 7 explained above, GSK committed to rest its UDTPA claim on the acts 8 reflected on the verdict form. 9 However, this finding does not support This finding alone does not show that Abbott Additionally, as GSK points to the jury’s finding that “Abbott deliberately United States District Court For the Northern District of California 10 withheld that it was considering ways to use Norvir to harm GSK and 11 competitors . . . .” 12 This finding cannot support GSK’s UDTPA claim; the jury concluded 13 that this act did not proximately cause GSK injury. 14 GSK’s Opp’n to Abbott’s JMOL Mot. 9:8-11. Finally, GSK argues that the “evidence, viewed in the light 15 most favorable to GSK, could support a finding that Abbott 16 violated” the UDTPA. 17 That the evidence could support such a finding warranted denying 18 Abbott’s motion for summary judgment; it does not, however, justify 19 entering judgment in GSK’s favor. GSK’s Opp’n to Abbott’s JMOL Mot. 8:1-2. 20 21 CONCLUSION For the foregoing reasons, the Court GRANTS GSK’s motion in 22 part and DENIES it in part. 23 enter judgment for Abbott on GSK’s claims under the Sherman Act, 24 the UDTPA and N.C. Gen. Stat. § 75-2.1. 25 judgment for GSK, in the amount of $4,549,590.96, on its claim for 26 breach of the implied covenant of good faith and fair dealing. 27 This amount includes pre-judgment interest, as provided under New 28 (Docket No. 489.) 5 The Clerk shall The Clerk shall enter 1 York law. 2 enter judgment forthwith. 3 Each party shall bear its own costs. The Clerk shall As noted above, Abbott moved for judgment as a matter of law, 4 pursuant to Federal Rule of Civil Procedure 50(a), before this case 5 was submitted to the jury. 6 directed at GSK’s Sherman Act, UDTPA and N.C. Gen. Stat. § 75-2.1 7 claims, the motion is moot. 8 to Rule 50(b), with respect to GSK’s claim for breach of the 9 implied covenant. To the extent that this motion was Abbott may renew its motion, pursuant In accordance with that rule, Abbott’s motion United States District Court For the Northern District of California 10 shall be due within “28 days after the entry of judgment.” 11 Civ. P. 50(b). 12 fourteen days thereafter, and Abbott’s reply shall be due seven 13 days after that. 14 law will be taken under submission on the papers. 15 Fed. R. If one is filed, GSK’s opposition shall be due Any renewed motion for judgment as a matter of IT IS SO ORDERED. 16 17 Dated: 7/8/2011 CLAUDIA WILKEN United States District Judge 18 19 20 21 22 23 24 25 26 27 28 6
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