Momenta Pharmaceuticals, Inc. (MNTA)

[GrthzGd]

Here is a portion of Amphastar's emergency motion. It don't think it will fly. Apparently, Amphastar messed up in failing to put on record the harm that they will suffer by not being able to sell their possibly infringing product. However, MNTA's potential harm is much greater, and I can't see the Judge modifying his decision now with just a week left before the PI hearing:

MOMENTA PHARMACEUTICALS, INC., et al.,
Plaintiffs,
v.
AMPHASTAR PHARMACEUTICALS, INC., et al.
Defendants.

No. 1:11-cv-11681-NMG
DEFENDANTS’ EMERGENCY MOTION
TO MODIFY OR DISSOLVE TEMPORARY RESTRAINING ORDER
EMERGENCY HEARING REQUESTED
....
Through a series of unfortunate and rushed events, on October 7, 2011, without briefing
or submissions from Defendants, this Court granted Plaintiffs’ motion for a TRO, prohibiting
Defendants from selling or offering to sell its generic version of the drug enoxaparin for two
weeks until the preliminary injunction hearing on October 20. The Court had indicated in
advance of the hearing that it only wanted to hear about Plaintiffs’ claim to harm over the next
two weeks. If Defendants had understood that they were expected to proffer evidence
concerning their injury if the TRO were granted, they would have demonstrated two distinct and
significant categories of real harm which will occur directly in the next two weeks if the Court
does not modify or dissolve the TRO.
First, because of the TRO, Defendants have one lot of enoxaparin which is set to expire
and become unusable before year end. If Amphastar must wait until October 20 to even begin to
try to sell this product, it is unlikely it will be able to sell this inventory for fair value, if at all,
because it will be too close to the lot’s expiration date to sell after the TRO expires.
Second, two Group Purchasing Organizations (“GPO”) have set bid deadlines within the
TRO period. These are bids for supplying product for several years. Based on prior successful
bids using Amphastar’s pricing strategy, Amphastar had a high chance of being awarded the
contracts. If it misses the deadline, it may be shut out of these GPOs for years.
Amphastar will not ship product in response to either of these opportunities before the
October 20 hearing. But, if it cannot at least make its bid or contact potential customers for the
expiring lot, if the preliminary injunction is denied on October 20, Amphastar may have lost
these opportunities forever.
etc. etc.

Unfortunately, we can't read MNTA's Opposition to this motion. The judge agreed to seal it because MNTA also messed up, and inadvertently included some trade secret information in it. Fortunately, Amphastar's mistake was a strategic error, while MNTA's was a procedural one (assuming the information didn't actually get disclosed to the public).