Momenta Pharmaceuticals, Inc. (MNTA)

[GrthzGd]

Joseph Liawatidewi's Declaration is also sealed, but I think the meaning of that phrase stands out clearly in the full context of MNTA's argument as follows:

Amphastar’s theory is as follows. Wholesalers “generally” require that drugs have at
least two months of remaining shelf life when the drug is received from the pharmaceutical
company. And it “generally” takes the pharmaceutical company “5-7 days to transport the drug
to the wholesaler and several more business days to process the order.” Liawatidewi Decl., ¶ 13.
This presentation overlooks the following facts: Amphastar is “the pharmaceutical
company” to which Mr. Liawatidewi refers. If it takes Amphastar “several business days” to
process an order, Amphastar only has itself to blame. Similarly, if it takes Amphastar “5-7 days
to transport product to a wholesaler,” that will be because Amphastar has chosen to avoid the
modest cost of more rapid delivery -- e.g. air freight. Further, Amphastar offers no explanation
as to why the “general” practice of wholesalers would not be modified by at least one
Case 1:11-cv-11681-NMG Document 56 Filed 10/13/11 Page 7 of 10
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wholesaler, if, as Amphastar states, it will be offering prices that are “significantly below”
current market prices. To the contrary, Mr. Liawatidewi tells us that Amphastar has successfully
sold “short dated product in the recent past.” Liawatidewi Decl., ¶ 12. Finally, Amphastar
makes the implausible argument that product will be saleable between October 14 and October
21, but cannot be sold, even a few days later. As stated in the Picard Declaration, Amphastar’s
contention is inconsistent with market realities. See Picard (10/13/11) Decl., ¶ 8.
Finally, Amphastar’s entire argument assumes that a preliminary injunction will be
denied. If the preliminary injunction is granted, Amphastar will not be able to ship the relevant
product, and a continuation of the TRO will not have affected Amphastar. For the reasons stated
in Momenta/Sandoz’s Memorandum in Support of Their Motion for a Temporary Restraining
Order and Preliminary Injunction, filed September 30, 2011, and to be stated in
Momenta/Sandoz reply memorandum, to be filed shortly, Amphastar’s assumption is unfounded.
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4955457v1
CONCLUSION
The Plaintiffs’ Emergency Motion should be denied.
Respectfully submitted,

MNTA appears to be arguing that Amphastar is perfectly capable of selling the a-enox on a short timetable, as it has successfully done in the recent past with regard to other drugs, and therefore there is no need to lift the TRO before the PI hearing.