Replies to post #131910 on Biotech Values

[DewDiligence]

Three comments on Judge Gorton’s ruling to retain the PI pending appeal:

1. It’s tenuous to base any ruling on SNY’s behavior insofar as SNY is not a party to this litigation.

2. However, if Judge Gorton had not accepted NVS/MNTA’s argument that SNY’s AG has been suspended because of the PI, he would presumably have found another reason for maintaining the PI, so the alleged suspension of the AG may not be as consequential as the Judge’s ruling makes it seem.

3. Regardless of what SNY ends up doing with the AG, I expect the Lovenox duopoly to remain essentially unchanged, as discussed in #msg-68742103.

[pollyvonwog]

It looks like that contractual profit then will most likely be hit this Q, possible early December...

[mouton29]

Re: MNTA -- if at first you don't succeed, try, try, try ....

An emergency motion seeking relief from the PI was filed on the 28th. The relevant documents are mostly sealed. After the latest docket entries I will post the motion itself, which says nothing substantive. Document 121, the supplemental declaration of Isaac Hubner, recites that attached thereto are copies of the Sanofi and Momenta earnings transcripts.
He cites to the Sanofi audio transcript at http://en.sanofi.com/investors/events/corporate/20ll/2011-1l-03_resultq3-20ll.aspx . and the Momenta written transcript at Seeking Alpha http://seekingalpha.com/article/305876-momenta-pharmaceuticals-ceo-discusses-q3-201l-results-earnings-call-transcript . We can speculate Amphastar is focused on the suspension of the AG.

11/23/2011 116 Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER "In accordance with the foregoing, defendants motion to stay or dissolve the preliminary injunction pending appeal (Docket No. 96 ) is DENIED without prejudice.So ordered."(Moore, Kellyann) (Entered: 11/23/2011)
11/23/2011 117 SECOND NOTICE OF APPEAL to the Federal Circuit as to 116 Memorandum & ORDER, by Amphastar Pharmaceuticals, Inc., International Medication Systems, Ltd., Watson Pharma, Inc., Watson Pharmaceuticals, Inc. Filing fee: $ 455, receipt number 0101-3687440 Fee Status: Filing Fee paid. US District Court Clerk to deliver official record to Court of Appeals by 12/13/2011. (Attachments: # 1 Exhibit A)(Bauer, Steven) (Entered: 11/23/2011)
11/25/2011 118 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals for the Federal Circuit re 117 Notice of Appeal to the Federal Circuit, (Ramos, Jeanette) (Entered: 11/25/2011)
11/28/2011 119 Assented to MOTION to Seal Memorandum in Support of Defendants Emergency Motion for Relief from Preliminary Injunction Pursuant to Court's Order of November 23, 2011 and the Declaration of Richard F. DeVivo, with Exhibit by Amphastar Pharmaceuticals, Inc., International Medication Systems, Ltd., Watson Pharma, Inc., Watson Pharmaceuticals, Inc..(Goldsmith, Herman) (Entered: 11/28/2011)
11/28/2011 120 Emergency MOTION for Relief from Preliminary Injunction Pursuant to Court's Order of November 23. 2011 by Amphastar Pharmaceuticals, Inc., International Medication Systems, Ltd., Watson Pharma, Inc., Watson Pharmaceuticals, Inc..(Goldsmith, Herman) (Entered: 11/28/2011)
11/28/2011 121 DECLARATION re 120 Emergency MOTION for Relief from Preliminary Injunction Pursuant to Court's Order of November 23. 2011 Supplemental Declaration of Isaac A. Hubner, Esq. in Support by Amphastar Pharmaceuticals, Inc., International Medication Systems, Ltd., Watson Pharma, Inc., Watson Pharmaceuticals, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Goldsmith, Herman) (Entered: 11/28/2011)
11/28/2011 122 DECLARATION re 120 Emergency MOTION for Relief from Preliminary Injunction Pursuant to Court's Order of November 23. 2011 Declaration of Richard F. DeVivo in Support, with Exhibit - FILED UNDER SEAL by Amphastar Pharmaceuticals, Inc., International Medication Systems, Ltd., Watson Pharma, Inc., Watson Pharmaceuticals, Inc.. (Goldsmith, Herman) (Main Document 122 replaced on 11/29/2011) (Moore, Kellyann). (Moore, Kellyann). (Entered: 11/28/2011)
11/28/2011 123 MEMORANDUM in Support re 120 Emergency MOTION for Relief from Preliminary Injunction Pursuant to Court's Order of November 23. 2011 - FILED UNDER SEAL filed by Amphastar Pharmaceuticals, Inc., International Medication Systems, Ltd., Watson Pharma, Inc., Watson Pharmaceuticals, Inc.. (Goldsmith, Herman) (Main Document 123 replaced on 11/29/2011) (Patch, Christine). (Entered: 11/28/2011)
11/29/2011 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered granting 119 Motion to Seal (Patch, Christine) (Entered: 11/29/2011)
11/29/2011 Judge Nathaniel M. Gorton: ELECTRONIC ORDER entered. re 120 Emergency MOTION for Relief from Preliminary Injunction Pursuant to Court's Order of November 23. 2011 filed by Watson Pharma, Inc., Watson Pharmaceuticals, Inc., Amphastar Pharmaceuticals, Inc., International Medication Systems, Ltd. "If plaintiffs intend to respond to defendants' motion for relief (Docket No. 120), they are directed to do so by Thursday, December 1, 2011."(Patch, Christine) (Entered: 11/29/2011)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
MOMENTA PHARMACEUTICALS, INC., et al.,
Plaintiffs,
v.
AMPHASTAR PHARMACEUTICALS, INC., et al.
Defendants.
)))))))))))
No. 1:11-cv-11681-NMG
DEFENDANTS’ EMERGENCY MOTION FOR RELIEF FROM PRELIMINARY
INJUNCTION PURSUANT TO COURT’S ORDER OF NOVEMBER 23, 2011
Defendants Amphastar Pharmaceuticals, Inc., International Medication Systems, Ltd.,
Watson Pharmaceuticals, Inc., and Watson Pharma, Inc. (collectively referred to as
“Defendants”) hereby move for emergency relief from the Preliminary Injunction Pursuant to
Court’s Order of November 23, 2011. Defendants’ arguments in support of their Emergency
Motion for Relief from Preliminary Injunction Pursuant to Court’s Order of November 23, 2011
are expounded in the Memorandum in Support of this Motion.
WHEREFORE, Amphastar Pharmaceuticals, Inc., International Medication Systems,
Ltd., Watson Pharmaceuticals, Inc., and Watson Pharma, Inc. respectfully request that this Court
grants their Emergency Motion for Relief from Preliminary Injunction Pursuant to Court’s Order
of November 23, 2011.
Case 1:11-cv-11681-NMG Document 120 Filed 11/28/11 Page 1 of 3
1987/12614-002 current/26075034v1 11/28/2011 12:20 pm
2
Dated: November 28, 2011 Respectfully submitted,
/s/ Herman L. Goldsmith
Herman L. Goldsmith (admitted pro hac vice)
[e-mail]
Proskauer Rose LLP
Eleven Times Square
New York, NY 10036-8299
Telephone: [phone]
Facsimile: 212.969.2900
Steven M. Bauer (BBO #542531)
Isaac A. Hubner (BBO # 677719)
[e-mail]
[e-mail]
Proskauer Rose LLP
One International Place
Boston, MA 02110-2600
Telephone: [phone]
Facsimile: 617.526.9899
Jan P. Weir (admitted pro hac vice)
[e-mail]
STRADLING YOCCA CARLSON & RAUTH
660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660
Telephone: [phone]
Facsimile: 949.725.4100
Anthony T. Pierce (admitted pro hac vice)
[e-mail]
Mark Mansour (admitted pro hac vice)
[e-mail]
Jonathan P. Robell (admitted pro hac vice)
[e-mail]
AKIN GUMP STRAUSS HAUER & FELD LLP
1333 New Hampshire Avenue NW
Washington, DC 20036
Telephone: [phone]
Facsimile: 202.887.4288
Counsel for Defendants Amphastar Pharmaceuticals, Inc., International Medication Systems,
Ltd., Watson Pharmaceuticals, Inc., and Watson Pharma, Inc.
Case 1:11-cv-11681-NMG Document 120 Filed 11/28/11 Page 2 of 3