EDGARDO RAMOS, District Judge.
Impax Laboratories, Inc. ("Impax") brought this action for declaratory judgment, breach of contract, and unjust enrichment against Turing Pharmaceuticals AG ("Turing") on May 2, 2016, seeking to recover millions of dollars of rebate liability related to sales of the drug Daraprim. Turing counterclaimed, asserting breach of the same contract and breach of the duty of good faith and fair dealing. Pending before the Court are (1) Impax's motion for summary judgment on one of its breach of contract claims against Turing (Count 3) and Turing's counterclaims, Doc. 78, and (2) Turing's cross-motion for summary judgment on Impax's claim for declaratory judgment, Impax's breach of contract claims, and Turing's breach of contract counterclaim against Impax, Doc. 92. For the reasons discussed below, Impax's motion is GRANTED in part and DENIED in part, and Turing's motion is GRANTED in part and DENIED in part.
Impax and Turing are both drug manufacturers. See Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Partial Summary Judgment and in Support of Cross-Motion for Summary Judgment ("Def.'s Mem.") at 5. A drug manufacturer typically does not sell a drug directly to patients. Def.'s 56.1 ¶ 26. Instead, a drug manufacturer primarily sells a drug through wholesalers and distributers, who then sell the drug to providers such as retail pharmacies or hospitals. Id. Subsequently, a pharmacy or hospital provides the patient with the drug, and the patient's insurer (such as Medicaid) reimburses the pharmacy or hospital for that drug. Id. The process of distribution of the drug to a patient and payment by the insurer is known as "utilization." Id. ¶ 27.
In order for a prescription drug to be eligible for Medicaid coverage, the manufacturer of the drug must participate in the Medicaid Drug Rebate Program—a program designed to help lower Medicaid spending on outpatient prescription drugs—and enter into a Medicaid Rebate Agreement with the U.S. Department of Health and Human Services ("HHS"). Pl.'s 56.1 ¶ 4; Def.'s 56.1 ¶ 30; Amended Complaint ("Am. Compl.") ¶¶ 16-17. Under the program, state Medicaid agencies cover the cost of the drug dispensed to eligible patients, and then collect a rebate from the manufacturer for each unit of drug utilized during a calendar quarter. Pl.'s 56.1 ¶ 7; Def.'s 56.1 ¶ 30. Each drug is linked to its manufacturer through its unique National Drug Code ("NDC"), part of which represents the manufacturer's unique labeler code. Pl.'s 56.1 ¶ 7; Defs.' 56.1 ¶ 32; Am. Compl. ¶ 1.
A manufacturer's rebate liability for a covered drug ("Medicaid Rebate Liability") is calculated by the Centers for Medicare and Medicaid Services ("CMS") using a statutory formula and certain pricing information ("Pricing Data") submitted by the manufacturer on a monthly and quarterly basis. See Pl.'s 56.1 ¶ 4, 8-9; Def.'s 56.1 ¶ 31; Am. Compl. ¶¶ 16-17. A manufacturer submits the Pricing Data through the online Drug Data Reporting for Medicaid ("DDR") system maintained by CMS. Pl.'s 56.1 ¶ 8. One of the components of the Pricing Data that a manufacturer must submit to CMS is the average manufacturer price ("AMP") for each calendar quarter. Pl.'s 56.1 ¶ 10; Def.'s 56.1 ¶ 35. A drug's AMP represents the average price paid to the manufacturer by (1) wholesalers that distributed the drug to retail community pharmacies, and (2) retail community pharmacies that purchased the drug directly from the manufacturer.
One methodology available to manufacturers to calculate AMP is the presumed inclusion methodology, which presumes that all sales of a drug to wholesalers are includable in AMP, except for those sales for which there is "adequate documentation" to the contrary.
CMS uses the AMP, among other things, to calculate a unit rebate amount ("URA") for each drug and transmits that information to the states. Pl.s 56.1 ¶ 11. Each state Medicaid agency then uses the data to calculate on a quarterly basis the rebate due from each manufacturer, by multiplying the state Medicaid utilization during that quarter times the URA in effect for that quarter. Id. ¶ 12. Because there is only one URA in effect for each quarter, manufacturers must pay that entire URA on each unit of the prescription drug bearing their labeler code that is paid for by a state Medicaid coverage program in that quarter—regardless of the price at which each unit was sold by the manufacturer and regardless of the amount a particular state paid to cover utilization of that unit. Id. ¶ 14. According to Impax, if a manufacturer fails to certify the Pricing Data or pay the Medicaid Rebate Liability due, it may be subject to, among other things, exclusion from the program, resulting in its drugs no longer being eligible for Medicaid coverage. Am. Compl. ¶ 21.
In March 2015, Impax acquired all outstanding shares of common stock of Tower Holdings, Inc. and certain of its subsidiaries, including Amedra Pharmaceuticals LLC ("Amedra"), for approximately $691.3 million. Def.'s 56.1 ¶ 1. By way of this transaction, Impax acquired the U.S. marketing rights for Daraprim, an antiprotozoal medication mainly used to treat toxoplasmosis, a high risk and often times life-threatening disease for those affected by HIV, AIDS, cancer, and other diseases weakening the immune system. Am. Compl. ¶¶ 14. Impax also acquired certain inventory of Daraprim, labeled with Amedra's labeler codes, and assumed Amedra's obligations under its Medicaid rebate agreement with HHS. Id. ¶ 16. Impax did not consider Daraprim a "strategic" part of its acquisition, and Daraprim was not part of its "core" business model. Def.'s 56.1 ¶ 2.
Prior to Impax's acquisition of the rights to Daraprim, Amedra had entered into and implemented an exclusive distribution agreement with Walgreen Co. ("Walgreens") for the distribution of Daraprim (the "Walgreens Distribution Agreement"). Def.'s 56.1 ¶¶ 4-5; Pl.'s Response to Def.'s 56.1. After acquiring Daraprim, Impax continued the exclusive distribution model with Walgreens. Id.
On April 22, 2015, Turing sent Impax a proposed offer to purchase Daraprim for $60 million—an amount that was six times Turing's estimate of Daraprim's annual net sales for 2014—and a term sheet representing "the current thinking of the parties." See Def.'s 56.1 ¶ 9; Pl.'s Response to Def.'s 56.1. During the negotiation of the Daraprim deal, Impax determined that it would have to increase the price of Daraprim by 300% to give Daraprim a net present value that was at least as much as what Turing was offering. Def.'s 56.1 ¶ 12. By July 21, 2015, Impax agreed to sell the rights to Daraprim to Turing for $55 million, eleven times Daraprim's 2014 annual net sales. Id. ¶ 13.
On August 7, 2015, Impax and Turing executed the Asset Purchase Agreement (the "APA") for the sale of the rights to Daraprim; the transaction closed on August 10, 2015 (the "Close"). Pl.'s 56.1 ¶ 1; Def.'s 56.1 ¶ 17. In addition to the rights to Daraprim, Impax transferred inventory of 12,521 100-count bottles of Amedra-labeled Daraprim (the "Inventory") to Turing. Pl.'s 56.1 ¶ 1. Rather than require Turing to repackage the Inventory with Turing's own labeler codes right away, the APA permitted Turing to sell the Inventory labeled with Amedra's NDCs during a contractually prescribed timeframe (the "Sell-Off Period"). Id. at ¶ 2; APA § 8.5(a).
Under the Medicaid rebate program, state Medicaid agencies collect Medicaid Rebate Liability from the manufacturer under whose labeler code an NDC is registered. See Pl.'s 56.1 ¶ 12. Thus, Impax remained responsible for paying, in the first instance, all Medicaid Rebate Liability with respect to Amedra-labeled Daraprim. See Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment ("Pl.'s Mem.") at 2. The parties agreed that Turing would, in turn, reimburse Impax for certain Medicaid liabilities. See Def.'s 56.1 ¶ 20-21; Pl.'s Mem. at 2; APA § 9.2, Ex. E. This litigation concerns, in part, Impax and Turing's disagreement on the extent of Turing's reimbursement obligations under the APA.
In addition to paying Medicaid Rebate Liability invoices in the first instance, Impax remained obligated to certify the Pricing Data to CMS for Turing's sales of Amedra-labeled Daraprim. Pl.'s Mem at 1; Def.'s Mem. at 6; Pl.'s 56.1 ¶ 18; Def.'s 56.1 ¶ 34. Because Impax does not have access to Pricing Data for Turing's sales of Amedra-labeled Daraprim, Turing agreed to provide Impax with certified monthly and quarterly Pricing Data for Amedra-labeled Daraprim, which Impax is then responsible for reporting to CMS by entering it into the DDR system in accordance with CMS guidelines.
On August 11, 2015—one day after the Close of the APA—Turing raised the price of Daraprim from Impax's price of $17.63 per pill to $750 per pill. Pl.'s 56.1 ¶ 21. The parties agree that the APA placed no limitation on Turing's right to increase the price of Daraprim. Def.'s 56.1 ¶ 19. However, Turing's price increase had significant effects on Daraprim's AMP and the amount of Medicaid Rebate Liability invoiced by the state Medicaid agencies.
On October 28 and 29, 2015, Turing provided Impax with its certification of Pricing Data for the third quarter of 2015 ("Q3 2015")—including a quarterly AMP of $750—which Impax certified to CMS.
State Medicaid agencies have invoiced Impax over $19 million in Medicaid Rebate Liability with respect to Daraprim for Q3 2015.
On February 1, 2016, Turing provided and Impax certified an AMP of approximately $719.40 for the fourth quarter of 2015 ("Q4 2015"). Id. ¶ 34. Based on the URA calculated by CMS, the state Medicaid agencies have invoiced Impax approximately $11.5 million in Medicaid Rebate Liability for Q4 2015. Id. ¶ 36. On March 1, 2016, Impax invoiced Turing for an additional $2.4 in Medicaid Rebate Liability reimbursement for Q3 2015 and Q4 2015 (the "March Invoice"). Id. ¶ 37. The March Invoice allocated Medicaid Rebate Liability in the same manner as the January Invoice, except that all Rebate Liability on Daraprim utilized and paid for by the state Medicaid agencies in Q4 2015 was assigned to Turing. Id. ¶ 38. On April 19, 2016, Impax sent Turing a third invoice requesting an additional $10.2 million in previously unaccounted-for Q3 2015 and Q4 2015 Medicaid Rebate Liability. Id. ¶ 40.
Turing similarly provided and Impax certified Pricing Data in April and July 2016, representing the first and second quarters of 2016. Pl.'s 56.1 ¶¶ 43-44, 49. Based on that Pricing Data and CMS's corresponding calculations, the state Medicaid agencies have invoiced Impax approximately $14 million in Daraprim Medicaid Rebate Liability. Id. ¶¶ 45, 50-51. In turn, Impax has billed Turing approximately $13 million in reimbursements for those quarters. Id. ¶¶ 46, 52.
Since the Close of the APA, the state Medicaid agencies have invoiced Impax a total of $45,412,214.07 in Medicaid Rebate Liability with respect to Daraprim. Id. ¶ 54. Impax has invoiced Turing a total of $43,434,170.13 in reimbursements. Id. To date, Impax's invoices remain outstanding. See id. ¶¶ 33, 39, 42, 48, 55.
After receiving the January Invoice, Turing consulted counsel at Reed Smith LLP ("Reed Smith") and engaged the Berkeley Research Group ("BRG") to assess the Pricing Data that Impax had submitted to CMS. Def.'s 56.1 ¶ 66. On February 16, 2016, Impax sent Turing a letter demanding that Turing pay the January 2016 invoice. Am. Compl. ¶ 34. Instead of responding to the letter, on March 22, 2016, Turing sent Impax a memorandum from Reed Smith suggesting that Turing may have miscalculated the AMP, potentially resulting in an overstatement of the total Medicaid Rebate Liability invoiced to Impax by the states and Turing's share of that liability. Naftalis Decl. Ex. 31, TURING0004588. Turing also forwarded three alternative models prepared by BRG purportedly calculating the parties' respective rebate liability. Def.'s 56.1 ¶ 67. Turing told Impax that BRG's third model—which showed a total Medicaid Rebate Liability for Q3 2015 of $354,000 (significantly less than the original amount of upwards of $18 million invoiced by the state Medicaid agencies)—was the most appropriate alternative. Id.
By April 2016, Turing informed Impax that it had concluded that the Pricing Data it provided to Impax—and that Impax had certified to CMS—for Q3 and Q4 2015 was incorrect and that Impax should restate that Pricing Data. Def.'s Mem. at 8-9; Def.'s 56.1 ¶¶ 67-68. According to Turing, in Q3 and Q4 2015, state Medicaid agencies paid a total of $12.6 million for Daraprim, but—based on the erroneous numbers submitted by Turing to CMS via Impax— invoiced $31.1 million in rebates, resulting in a windfall to state Medicaid agencies of $18.5 million. Def.'s Mem. at n. 30.
On June 15, 2016, Turing formally demanded that Impax restate and recertify the Q3 and Q4 2015 Pricing Data (the "Restatement Demand"). Pl.'s 56.1 ¶ 62; Def.'s 56.1 ¶ 70. Specifically, Turing demanded that Impax submit a restated AMP of approximately $14, a number significantly lower than the AMPs of $750 and $719.40 that Impax had previously submitted.
Together with the Restatement Demand, Turing sent Impax a check for $150,222, which it stated reflected its share of the recalculated Medicaid Rebate Liability. Def.'s 56.1 ¶ 70; Naftalis Decl. Ex. 34. Turing took the position that not only was the total Medicaid Rebate Liability overstated due to a calculation error, but that Impax had not allocated responsibility for that liability between the parties in accordance with the APA. Def.'s Mem. at 8. Impax had allocated responsibility based on its belief that Turing is responsible for (1) all Medicaid Rebate Liability assessed on Daraprim utilized after the Close, including Daraprim that Impax sold into distribution channels before the Close; and (2) the increase in Medicaid Rebate Liability owed on pre-Close utilization of Daraprim caused by Turing's post-Close price increase (i.e., the incremental rebate liability). Pl.'s Mem. at 6; Def.'s Mem. at 11.
Turing's June 15, 2016 check reflected its belief that it is only responsible for Medicaid Rebate Liability assessed on Daraprim that Turing sold into distribution channels after the Close. See Def.'s 56.1 ¶ 70-72. Even under the proposed restatement—which, according to Turing, results in no incremental rebate liability with respect to Daraprim utilized before the Close
On May 2, 2016—after Impax demanded that Turing pay its share of the Medicaid Rebate Liability, but before Turing officially demanded that Impax restate and recertify the Q3 and Q4 2015 Pricing Data—Impax brought the instant suit against Turing, seeking a declaratory judgment that Turing breached the APA by failing to provide timely and accurate Pricing Data, an order compelling specific performance of Turing's reporting obligations under the APA, and damages for Turing's breach of the APA for, among other things, failing to reimburse Impax for its share of Medicaid Rebate Liability. Complaint (Doc. 1). Impax also sought a temporary restraining order and preliminary injunction ordering Turing to, among other things, stop selling Amedra-labeled Daraprim. Id. The Court denied the requests, finding that although Impax had established a likelihood of success on the merits, it failed to demonstrate irreparable harm. See Doc. 31 (May 10, 2016 Transcript); Doc. 29 (May 18, 2016 Transcript). On May 24, 2016, Turing filed its answer to the complaint, along with a counterclaim for Impax's alleged breach of the duty of good faith and fair dealing by refusing to engage with Turing to correct the errors in the Pricing Data. Answer with Counterclaim (Doc. 27). The parties thereafter began discovery.
On June 24, 2016, after Turing sent Impax its June Restatement Demand, Impax amended its complaint to add factual allegations and additional claims for breach of contract and unjust enrichment.
On October 14, 2016, Impax filed a motion for partial summary judgment on its claim that Turing breached the APA by failing to reimburse Impax for its share of Medicaid Rebate Liability (Count 3), and Turing's counterclaims for breach of contract and the implied duty of good faith and fair dealing (Counts 1 and 2). Doc. 78. Turing filed its opposition to Impax's motion one month later, together with a cross-motion for summary judgment on all of Impax's remaining claims (Counts 1-4) and Turing's counterclaim for breach of contract against Impax (Count 1). Doc. 92. The Court held oral argument on the parties' motions on September 26, 2017.
To prevail on summary judgment, the movant must show that "there is no genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). "An issue of fact is `genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). "A `material' fact is one that might `affect the outcome of the litigation under the governing law.'" Id. "The function of the district court in considering the motion for summary judgment is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010). On a summary judgment motion, the district court "may not make credibility determinations or weigh the evidence . . . . `Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" Id. at 545-46 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)) (emphasis omitted).
"When confronted with cross-motions for summary judgment, the Court analyzes each motion separately, `in each case construing the evidence in the light most favorable to the non-moving party.'" Peterson v. Kolodin, No. 13 Civ. 793 (JSR), 2013 WL 5226114, at *1 (S.D.N.Y. Sept. 10, 2013) (quoting Novella v. Westchester Cty., 661 F.3d 128, 139 (2d Cir. 2011)); see also Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001) ("[E]ach party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.") (citation omitted). The Court is not required to resolve the case on summary judgment merely because all parties move for summary judgment. Morales, 249 F.3d at 121.
Impax moves for summary judgment on its third claim, which alleges that Turing breached the APA by failing to reimburse Impax for its share of Daraprim Medicaid Rebate Liability. Pl.'s Mem. at 5; Def.'s Mem. at 10. Turing cross-moves for summary judgment on the same claim.
Under New York law, the "essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from the breach." LaRoss Partners, LLC v. Contact 911 Inc., No. 11 Civ. 1980 (ADS) (ARL), 2015 WL 2452616, at *6 (E.D.N.Y. May 21, 2015) (citing Canzona v. Atanasio, 118 A.D.3d 837 (2d Dep't 2014) (internal quotation marks omitted). A party "will not be able to prevail on its breach of contract claim unless it . . . proves, by a preponderance of the evidence, that it performed its own obligations under the contract." Id.; see also Nature's Plus Nordic A/S v. Natural Organics, Inc., 980 F.Supp.2d 400, 412 (E.D.N.Y. 2013) ("[I]n order to prevail on a breach of contract claim, a plaintiff must establish performance of each of its obligations under the contract, not just those obligations that the defendant previously cited as a basis for termination.").
Impax and Turing agree on several key issues. They agree that (1) the APA is an unambiguous contract, and that the proper interpretation of an unambiguous contract is a question of law for the Court, Pl.'s Mem. at 5; Def.'s Mem. at 10; (2) the APA is an enforceable contract, Pl.'s Mem. at 5; Pl.'s 56.1 ¶ 3; Def.'s Response to Pl.'s 56.1 ¶ 3; and (3) Turing is responsible for at least a portion of the Medicaid Rebate Liability invoiced by the state Medicaid agencies. Nonetheless, they dispute whether Turing is contractually obligated to pay any rebate liability on Daraprim sold by Impax but utilized after the Close, or any part of the rebate liability owed on Daraprim utilized before the Close in 3Q 2015.
In addition to arguing that it has not breached the APA by refusing to pay Impax's invoices, Turing argues—and counterclaims—that Impax itself breached the APA by refusing to restate and recertify the Pricing Data for Q3 and Q4 2015 to CMS. Doc. 43. Because Turing argues that Impax has not performed its own obligations under the APA, in determining whether summary judgment on Impax's breach of contract claim is proper, the Court must consider whether Impax has itself failed to perform its obligations under the APA such that it would not be able to prevail on its breach of contract claim.
Impax argues that Turing is contractually obligated to pay: (a) all Medicaid Rebate Liability assessed on Daraprim utilized after the Close; and (b) the incremental rebate liability assessed on Daraprim utilized before the Close that was generated by Turing's price increase. Pl.'s Mem. at 6. Turing, on the other hand, argues that the APA limits Turing's rebate obligations to rebate liability assessed on Daraprim that Turing itself sold into distribution channels after the Close, and that Turing is not responsible for any portion of rebate liability assessed on Daraprim that Impax sold into distribution channels. Def.'s Mem. at 11. This, Turing asserts, includes the incremental rebate liability assessed on pre-Close utilization caused by Turing's price increase. See id. at 11, 19. The Court discusses whether Turing is responsible for either category of liability in turn.
In support of its contention that Turing is responsible for Medicaid Rebate Liability for Daraprim sold by Impax into distribution channels before the Close but utilized after the Close, Impax points to Section 9.2(d) and Exhibit E of the APA. Pl.'s Mem. at 6-9. Section 9.2(d) addresses the allocation of Medicaid Rebate Liability between Impax and Turing during the Sell-Off Period, providing that:
According to Impax, Section 9.2(d)'s reference to "[p]roducts sold on or after the Closing Date" does not specify which "sale" must occur before or after the Close (i.e., sales by Impax or Turing, or sales further down the supply chain). In contrast, Impax argues, other provisions are "abundantly clear on that same point." Pl.'s Mem. at 7. For example, portions of Section 2.4 expressly cover Daraprim "sold by Buyer on or after the Closing Date" and Sections 9.2(b) and (c) state that Impax "shall be financially responsible for returned Product . . . sold by Seller prior to the Closing Date" while Turing "shall be financially responsible for all returned Product sold by or on behalf of Buyer on or after the Closing Date." Pl.'s Mem. at 7-8; APA §§ 2.4(a), 9.2(b)-(c).
According to Impax, Section 9.2(d) expressly directs the parties to Exhibit E of the APA for "needed clarity" regarding the type of "sale" that determines the allocation of Medicaid Rebate Liability between Impax and Turing during the Sell-Off Period. Pl.'s Mem. at 8. Exhibit E, in turn, lists a series of "assumptions" for the Sell-Off Period, including that:
Impax contends that "in calculating rebate liability, Exhibit E requires the use of the assumption that Turing is responsible for all liability on post-Close utilization."
Turing, on the other hand, contends that "the APA unambiguously allocates the Daraprim rebate obligations between the parties based on when the manufacturer sold that product into distribution channels," not when the product was utilized. Def.'s Mem. at 11. Turing relies on Sections 2.4, 8.3, and 9.2(d) of the APA to support its position. Section 2.4(a) provides that:
Turing contends that Section 2.4(a)'s reference to the "sale of Product on or after the Closing Date" actually means "the sale of Product by Turing into distribution channels." See Def.'s Mem. at 11. Turing makes the same argument with respect to Section 9.2(d)'s language assigning Turing responsibility for rebates for Daraprim "sold" post-Close. Id. at 12 ("As this provision demonstrates, the parties expressly contemplated that both Impax and Turing would each bear responsibility for a portion of rebates depending on whether their sale of the drug into distribution channels took place before or after the Closing Date.").
Turing also argues that Section 8.3 of the APA "removes any ambiguity" about what the terms "sale" and "sold" mean in Sections 2.4(a) and 9.2(d), respectively. Id. at 12. Turing contends that Section 8.3 makes clear that Turing is only responsible for obligations owed to the government on Daraprim sold by Turing, which necessarily excludes Daraprim that Impax sold into distribution channels but was utilized after the Close. Id. Section 8.3 provides that:
According to Turing, Section 8.3 applies to Medicaid Rebate Liability because it is an obligation owed to a Governmental Entity. Def.'s Mem. at 13. Thus, Turing argues, Section 8.3 provides that Turing is responsible for Medicaid Rebate Liability, "only to the extent arising from or relating to [Daraprim] . . . sold by or on behalf of [Turing] . . . after the Closing Date." Id. (emphasis added).
Finally, Turing argues that Exhibit E does not require Turing to pay Impax for rebates on Impax's own sales of Daraprim. Def.'s Mem. at 16-17. Turing urges that Exhibit E must be "read in the context of the APA as a whole" and considering Exhibit E's purpose (i.e., to designate the parties' roles and responsibilities regarding Section 9.2 during the Sell-Off Period). Id. at 17. Turing contends that by reading Exhibit E to only apply to Daraprim Turing sells during the Sell-Off Period, "the terms of the APA and Exhibit E achieve a harmonious whole." Id. at 18. Turing also argues that Exhibit E does not purport to define the terms "sale" or "sold," and that the relevant language only describes an "assumption"—"not a right, obligation, promise, warranty, representation or undertaking of any kind." Id. According to Turing, Exhibit E merely reflects that the parties "took for granted" that Turing would be responsible for Medicaid Rebate Liability assessed on its sales of Daraprim after the Close, which would necessarily also be utilized after the Close. Id. Turing contends that in light of Sections 2.4(a), 8.3, and 9.2(d) of the APA, that assumption is "invalid" with respect to Daraprim previously sold by Impax or Amedra. Id.
Based on the plain language of the APA, Turing's interpretation of the allocation of Medicaid Rebate Liability with respect to Daraprim sold into distribution channels by Impax and utilized after the Close is untenable. Turing's argument that Sections 2.4 and 9.2(d) limit Turing's rebate liability to Daraprim sold "by Turing into distribution channels" is unconvincing because the terms "by Turing" and "into distribution channels" are simply nowhere to be found in the relevant provisions. Tellingly, other provisions in the APA allocating responsibilities between Impax and Turing based on which party sold Daraprim are abundantly clear.
Moreover, to follow Turing's interpretation of the "utilization" language in Exhibit E would render it entirely superfluous. As Impax argues, Daraprim that was sold into distribution channels after the Close is also necessarily utilized after the Close. Pl.'s Mem. at 6. If, as Turing argues, the APA limits Turing's obligations to rebate liability assessed on sales made by Turing after the Close, then also making Turing "responsible for all rebates on utilization that takes place after the Close" would be superfluous. Id. Such an interpretation would be contrary to established Second Circuit law. See, e.g., LaSalle Bank National Association v. Nomura Asset Capital Corp., 424 F.3d 195, 206 (2d Cir. 2005) ("In interpreting a contract under New York law, words and phrases should be given their plain meaning, and the contract should be construed so as to give full meaning and effect to all of its provisions.") (internal quotation marks and citation omitted).
The Court also disagrees with Turing's argument that Section 8.3 resolves any ambiguity with respect to the terms "sold" and "sale" in Sections 2.4(a) and 9.2(d). Section 9.2(d), which explicitly deals with Medicaid rebates, directs the parties to Exhibit E—and not Section 8.3—for any necessary clarification. Indeed, Section 9.2(g) instructs that in the event of a conflict between Section 9.2 and Exhibit E, "the provisions of Exhibit E shall govern." Moreover, Turing's argument that Section 8.3 limits Turing's responsibility to obligations arising from the sale of Daraprim by Turing is unavailing. By its express terms, Section 8.3 provides that it is effective only insofar as the APA does not set forth otherwise. It is evident that the parties provided otherwise in Exhibit E. As Impax points out, "for the words [in Exhibit E] to have any meaning, Turing must be held to its obligation to pay all Medicaid Rebate Liability triggered by utilization after the Close." Pl.'s Mem. at 6.
With respect to the incremental Medicaid Rebate Liability on pre-Close utilization of Daraprim caused by Turing's post-Close price increase,
Impax argues that because the Medicaid Rebate Liability assessed on Daraprim utilized before the Close would have been significantly lower had Turing not raised the price, the incremental rebate liability at issue "arose" from the marketing and sale of Daraprim after the Close, and is thus Turing's to bear. See Pl.'s Reply at 8. To be sure, Section 2.4(a) does not expressly state that Turing is "responsible for its own actions" or that responsibilities are assigned to "the party that created" them. The language of Section 2.4(a) is not that broad. Rather, Impax seems to suggest that Turing is liable for the incremental rebate liability because its price increase was part of its "marketing or sale" of Daraprim after the Close. Pl.'s Reply at 9. In its Reply, Impax cites the dictionary definition of "marketing" as "(i) the act or process of selling or purchasing in a market, and (ii) the process or technique of promoting, selling, and distributing a product or service." Id.; see also Naftalis Reply Decl., Ex. 3. Impax contends that these definitions, on their face, include Turing's pricing point for Daraprim. Pl.'s Reply at 9.
Impax further contends that Exhibit E also holds Turing responsible for the incremental Medicaid Rebate Liability generated by Turing's price increase. Pl.'s Mem. at 14. Exhibit E provides that:
Impax relies on the word "prorated" and its dictionary definition: "to divide, distribute, or assess proportionally (i.e., in a correct or appropriate relationship between the size and position of different parts)." Pl.'s Mem. at 14 (citing the Merriam-Webster Dictionary definitions of "Prorate" and "Proportion"). Impax contends that in order to give "prorated" its plain meaning, "Medicaid Rebate Liability must be distributed proportionally between Impax and Turing—with each party bearing its fair share." Id. at 15. According to Impax, Turing's "fair share" includes the additional Medicaid Rebate Liability on pre-Close utilization that Turing created by increasing the price of Daraprim. Id.
Turing contends that even if Medicaid Rebate Liability on pre-Close utilization would have been lower had Turing not increased the price of Daraprim, "nothing in the APA or Exhibit E entitles Impax to shift all or a portion of its rebate liability to Turing based on Turing's absolute right under the APA to increase the price of Daraprim." Def.'s Mem. at 19. First, Turing describes the relevant portion of Section 2.4(a) as "general introductory language," appearing to suggest that it does not set forth any obligations and that Section 2.4(a)'s obligations are only found in its subsections (i) through (iv). Id. at 20. Turing further argues that even if Impax could rely on the general introductory language, Section 2.4(a) does not assign incremental rebate liability to Turing because that liability does not arise from Turing's marketing or sale of Daraprim: that Daraprim was sold by Impax and "marketing" does not include Turing's price increase.
With respect to Exhibit E, Turing argues that Impax's reliance on the word "prorate" is misplaced. According to Turing, Exhibit E "does not mention splitting between Impax and Turing a rebate on a particular sale of Daraprim." Id. at 21. Instead, "proration" is needed because both Impax and Turing sold Amedra-labeled Daraprim in Q3 2015 and certain of that Daraprim was utilized after the Close. Id.
The Court finds that Exhibit E does not assign to Turing responsibility for incremental rebate liability assessed on pre-Close utilization that may have been generated by Turing's price increase. The purpose of "proration" in the relevant portion of Exhibit E was to account for rebate liability on Daraprim sold by Impax but utilized after the Close. The "proration" language immediately follows the sentence stating that Turing is responsible for rebates on post-Close utilization, indicating that it was meant to qualify and provide additional instruction on the preceding sentence. Thus, it is evident that the "proration" language only addresses the issue of post-Close utilization and is wholly irrelevant to the distribution of liability assessed on Daraprim that was utilized before the Close.
However, the Court does find that pursuant to Section 2.4(a), Turing is responsible for the incremental rebate liability assessed on pre-Close utilization arising from Turing's price increase. At the outset, the Court notes that the portion of Section 2.4(a) at issue is not merely "general introductory language," as Turing suggests. Section 1.2—which sets forth the defined terms of the APA—provides that the word "including" will be deemed to be followed by the words "without limitation." Thus, the Court agrees with Impax that Section 2.4's list of liabilities arising or related to the post-Close time period is not exhaustive.
Based on the plain language of the relevant portion of Section 2.4(a), Turing is responsible for the liability at issue if that liability was generated solely by Turing's "marketing or sale" of Daraprim. First, the Court finds that Turing's price increase was part of its "marketing or sale" of Daraprim. As Impax points out—and Turing does not contest in its Reply—the dictionary defines "marketing," in part, as the act, process, and technique of promoting and selling a product. Price point is necessarily part of the act, process, and technique of promoting and selling a product, and is therefore part of its marketing.
In sum, the Court finds that Turing is contractually obligated to reimburse Impax for (1) all Medicaid Rebate Liability assessed on Daraprim sold into distribution channels before the Close but utilized after the Close, and (2) any incremental rebate liability that its price increase may have generated with respect to Daraprim utilized before the Close.
In any event, even if Impax's allocation of rebate liability were inconsistent with the APA, Turing has reimbursed Impax for the liability it does accept only to the extent it is based on the URA that would be calculated using the proposed restated Pricing Data. Def.'s 56.1 ¶¶ 71(c), 72(c) ("Turing multiplied the corrected URA (based on the Corrected Pricing Data) by the number of units allocated to Turing [to arrive at the dollar amount of Turing's share of total Medicaid rebate liability for Q3 and Q4 2015]."). Indeed, Turing admits that it has refused to pay Impax's 3Q and 4Q 2015 invoices, in part, because "the total amount of Medicaid rebate liability in those invoices was grossly inflated because it was based on an incorrect AMP . . . ." Naftalis Decl., Ex. 28. Nothing in the APA allows Turing to refuse reimbursing Impax for liability already invoiced by the state Medicaid agencies—and paid in the first instance by Impax
While the Court finds that Turing has breached the APA, in order to award summary judgment in favor of Impax it must also determine that Impax performed its own obligations under the APA, a question to which the Court now turns.
Turing contends that Impax breached and continues to breach its obligations under the
APA by refusing to restate the Pricing Data for Q3 and Q4 2015. Def.'s Mem. at 29. Impax, on the other hand, argues that (1) the APA does not require Impax to restate Pricing Data at all, and (2) even if the APA does require Impax to restate, it does not require Impax to submit a restatement if Impax has subjectively reasonable concerns about the restatement. See Pl.'s Mem. at 19-24; Pl.'s Reply at 20-27.
Impax contends that "nowhere does the APA require that Impax restate Pricing Data." Pl.'s Mem. at 19. Instead, Impax argues, Turing attempts to infer an obligation to restate from Impax's obligation to report and certify Pricing Data in the ordinary course.
According to Turing, one such regulation contemplated by Section 9.2(e) is 42 C.F.R. § 447.510(b), which provides that a drug manufacturer "must report to CMS any revision to AMP, best price customary prompt pay discounts, or nominal prices for a period not to exceed 12 quarters from the quarter in which the data were due." 42 C.F.R. § 447.510(b) (emphasis added). As stated, the data that Turing seeks to have Impax restate is the AMP for Q3 and Q4 2015.
In light of Section 9.2(e) and the regulatory scheme it contemplates, the Court finds that an obligation to report Pricing Data revisions, including by way of a restatement, is subsumed within Impax's obligation to report "all information relating to Product bearing Amedra's NDC number and the prices thereof . . . to the Medicaid Drug Rebate Program." Contrary to what Impax suggests, Section 9.2(e) does not limit Impax's reporting obligations to information "in the ordinary course," and it expressly contemplates the need to comply with applicable rules and regulations such as 42 C.F.R. § 447.510(b), which requires the reporting of revisions to AMP.
The Court does agree with Impax that the APA does not require Impax to blindly report any Pricing Data Turing provides. See Pl.'s Reply at 20. As Impax indicates—and Turing does not appear to challenge—Impax is only required to report Pricing Data that is consistent with applicable rules and regulations. See Id.; Def.'s Reply at 7. Section 9.2(e) of the APA provides that Impax "shall maintain responsibility for reporting [Pricing Data] under applicable rules and regulations to the Medicaid Drug Rebate Program" (emphasis added), and Exhibit E provides that Impax shall "[e]nter all applicable information into DDR and certify in accordance with CMS guidelines." Id. at 20 (emphasis added). Accordingly, Impax is under no contractual obligation to submit a restatement that does not comply with applicable rules and regulations.
But it does not follow, as Impax argues, that Impax may refuse to restate if it has "subjectively reasonable" concerns about restating, even if the Pricing Data is objectively accurate and complies with applicable rules and regulations. Pl.'s Reply at 21 ("[I]t is insufficient for Turing to show that Impax's concerns are objectively wrong . . . rather, Turing must demonstrate that they are subjectively unreasonable. In other words, Turing must show that Impax exercised a right malevolently, for its own gain as part of a purposeful scheme designed to deprive Turing of the benefits of the fruit of its bargain.").
In support of its position, Impax relies on Greenwood v. Koven, 880 F.Supp. 186 (S.D.N.Y. 1995), a district court decision with a very different set of facts and legal questions than the ones at hand. In Greenwood, contractual language gave a party authority to rescind a sale if the party "in its sole judgment" determined that the sale may subject it to liability. Greenwood, 880 F. Supp. at 192. In deciding that a subjective standard—and not an objective one—applied in analyzing the propriety of the party's exercise of this judgment, the court found that the contractual language clearly indicated "that only [the party's] judgment was to be relevant in its determination as to potential liability." Id. at 196-97. Thus, the court held that the relevant question was whether the party was "honestly" dissatisfied that the sale would not subject it to liability, not whether that dissatisfaction was objectively reasonable. Id. at 199-200.
In the instant case, the APA does not allow Impax to refuse to report Pricing Data to CMS based on its "sole judgment." Instead, Impax must certify information that is consistent with CMS rules and regulations. If the data is accurate and complies with applicable rules and regulations, then Impax must report it.
In its various submissions, Impax never outright contends that Turing's proposed restatement is inaccurate or fails to comply with applicable rules and regulations. See Pl.'s Mem. at 21 ("[The APA] does not compel Impax to restate facially inappropriate Pricing Data proffered by Turing where doing so could be contrary to law." (emphasis added); Id. at 22 ("Here, the undisputed facts demonstrate that Turing's restatement demand is both unreasonable and could violate the law.") (emphasis added). Instead, Impax argues that it has "reasonable and well-founded" concerns about submitting the restatement.
Impax's only concrete objection to the lawfulness of the proposed restatement is its assertion that Impax sold Daraprim to Walgreens Specialty Pharmacy, which in turn transferred 16 to 17 percent of that Daraprim to local Walgreens storefronts in 3Q and 4Q 2015. Pl.'s Reply at 24. According to Impax, these storefronts qualify as retail community pharmacies—because they do not primarily sell prescription medicines through the mail—and are thus includable in AMP calculations. Id. at 24-25. Impax also points out that in calculating AMP for Daraprim sold under its own NDC in the first and second quarters of 2016, Turing included sales to those exact same storefront pharmacies when they purchased Daraprim directly from Turing's wholesaler (instead of indirectly though Walgreens Specialty Pharmacy). Id. at 25.
Walgreens Specialty Pharmacy's subsequent transfers of Daraprim to retail community pharmacies in 3Q and 4Q 2015 are of no consequence to Turing's AMP calculation. See Def.'s Reply at 9. As stated, AMP is defined as the average price paid to the manufacturer by (1) wholesalers that distributed the drug to retail community pharmacies, and (2) retail community pharmacies that purchased the drug directly from the manufacturer. Def.'s 56.1 ¶ 35; 42 U.S.C. § 1396r-8(k)(1)(A). Walgreen's internal transfers do not fall into either category because (1) they were not distributed by a wholesaler, and (2) they were not direct sales by Turing to retail community pharmacies. This also explains Turing's inclusion in its AMP of sales to those exact same pharmacies in the first and second quarters of 2016: the sales were AMP-eligible in 2016 because they flowed directly from Turing to retail community pharmacies; but they were ineligible in 2015 because they were internal transfers from Walgreens Specialty Pharmacy fulfillment sites. Moreover, as Ms. Bates—Turing's expert witness—suggests, that Walgreens Specialty Pharmacy redistributed a minority of Daraprim (i.e. 16 to 17 percent) in 3Q and Q4 2015 to brick-and-mortar storefronts does not alter the fact that Walgreens Specialty Pharmacy dispensed medications primarily through the mail, and accordingly, does not qualify as a retail community pharmacy. See Bates Rebuttal Report ¶ 15.
In sum, the Court finds that (1) Impax's subjectively reasonable concerns are not a sufficient basis to refuse submitting Turing's proposed restatement, and (2) Impax has not established that the proposed restatement is inconsistent with applicable rules and regulations. Therefore, the Court finds that by refusing to restate the Pricing Data for Q3 2015 and Q4 2015 as Turing requests, Impax has failed to perform its own contractual obligations and is unable to recover on its breach of contract claim. Accordingly, Impax's motion for summary judgment on its breach of contract claim is DENIED and Turing's motion is GRANTED.
As stated, the Court has found that (1) Turing breached the APA by refusing to reimburse Impax for Medicaid Rebate Liability assessed on Daraprim sold by Impax but utilized after the Close and the incremental rebate liability generated by Turing's price increase, and (2) Impax breached the APA by refusing to restate the Pricing Data for Q3 and Q4 2015. Because Turing has failed to perform its obligations under the APA, like Impax, Turing is unable to prevail on its breach of contract claim against Impax as a matter of law. LaRoss, 2015 WL 2452616, at *6 ("[A party] will not be able to prevail on its breach of contract claim unless it . . . proves, by a preponderance of the evidence, that it performed its own obligations under the contract."). Accordingly, Turing's motion for summary judgment on its breach of contract claim against Impax (Counterclaim 1) is DENIED and Impax's motion is GRANTED.
Impax moves for summary judgment on Turing's counterclaim that Impax breached the duty of good faith and fair dealing on the ground that it is duplicative of Turing's breach of contract claim. Pl.'s Mem. at 21. "New York law . . . does not recognize a separate cause of action for breach of the implied covenant of good faith and fair dealing when a breach of contract claim, based upon the same facts, is also pled." Harris v. Provident Life and Accident Insurance Co., 310 F.3d 73, 81 (2d Cir. 2002). As Turing points out, however, where a party relies on different facts for its claims of breach of contract and breach of the implied duty of good faith and fair dealing, New York courts routinely permit the party to proceed on both claims. Def.'s Mem. at 31; see also Credit Agricole Corp. v. BDC Finance, L.L.C., 135 A.D.3d 561, 561 (N.Y. App. Div. 2016) (allowing claims for breach of contract and breach of the duty of good faith and fair dealing to proceed because they were sufficiently distinct). Turing contends that its claim for breach of the implied duty of good faith and fair dealing is distinct from its breach of contract claim because it is premised on Impax's alleged "refusal to work cooperatively with Turing to correct erroneous Pricing Data and rectify overstated government obligations as to which the parties share responsibility." Def.'s Mem. at 31.
At its core, Turing's claim that Impax breached the duty of good faith and fair dealing is premised on Impax's refusal to submit the proposed restatement. See Def.'s Answer with Counterclaims (Doc. 43) ¶ 134 ("Impax's refusal to take action to correct the erroneous Pricing Data it submitted to CMS, insistence that it will not take steps to correct that data . . . and threats to influence the federal government to stop covering Daraprim under government health-care programs are arbitrary, unreasonable, in bad faith and contrary to the public interest.). Impax's refusal to restate is also the basis of Turing's breach of contract counterclaim. Thus, the Court finds that Turing's counterclaims are duplicative and that Turing was not entitled to plead both claims in the instant action. Accordingly, Impax's motion for summary judgment on Turing's claim for breach of the duty of good faith and fair dealing (Counterclaim 2) is GRANTED.
Turing claims that it is entitled to summary judgment on Count 1 of Impax's Amended Complaint, which seeks a declaratory judgment that "Turing breached Section 8.5 of the APA and that, as a result, Impax may revoke any rights Turing was granted to use the Impax NDC's or other Corporate Names." Am. Compl. ¶ 80.
Section 8.5 of the APA grants Turing the right to sell Daraprim labeled with Impax's Corporate Names during the Sell-Off Period. APA § 8.5(a). In return, Turing agreed that it would "use best efforts not to do any act which endangers, destroys or similarly affects the value of the goodwill pertaining to [Impax's] Corporate Names" and that it would not use Impax's Corporate Names in any manner "inconsistent with [Impax's] use of the Corporate Names" or that violates applicable law. APA § 8.5(c). Section 8.5 further states that Impax may revoke Turing's rights to use Impax's Corporate Names "at any time upon breach by [Turing] of any provision of this Section 8.5." APA § 8.5(a).
Impax claims that Turing's late reporting of Pricing Data on repeated occasions "endangered Impax's ability to comply with its own reporting obligations to CMS," which in turn endangered the goodwill associated with Impax's Corporate Names and allowing Impax to revoke Turing's rights to use Impax's NDCs and Corporate Names. Turing contends that it is entitled to summary judgment because "Impax has failed to adduce any evidence that it suffered reputational harm as a result of Turing's reporting of Pricing Data." According to Impax, however, Section 8.5(a) allows Impax to revoke Turing's rights if Turing does anything to endanger goodwill, and does not require that Impax suffer actual reputational harm. Pl.'s Reply at 29-30 (citing APA § 8.5(c)).
The Court agrees that Impax need not establish actual reputational harm. The plain language of Section 8.5 allows Impax to revoke Turing's rights under that section if Turing fails to "use best efforts not to do any act which endangers, destroys or similarly affects the value of the goodwill pertaining to [Impax's] Corporate Names." APA § 8.5(a), (c). Whether Turing used "best efforts" and whether Turing's reporting delays endangered the goodwill associated with Impax's Corporate Names are questions of fact. Moreover, material issues of fact exist regarding whether Turing's reporting delays amounted to the required endangerment. For example, Impax points to the deposition of Mr. Kane, who testified that "[w]e [Impax] have been put in precarious positions by being late in our reporting as a result of Turing not meeting its reporting obligations to Impax." Kane Dep., 107:8-11. Accordingly, Turing's motion for summary judgment on Impax's claim for declaratory judgment (Count 1 of the Amended Complaint) is DENIED.
Count 2 of the Amended Complaint alleges that Turing violated Section 9.2 and Exhibit E of the APA by failing to provide monthly certified Pricing Data for certain months, and providing some Pricing Data late and only after repeated demands. Def.'s Mem. at 39; Am. Compl. ¶ 84. Impax, therefore, claims that it is entitled to specific performance of that provision on an ongoing basis.
In its cross-motion for summary judgment on this claim, Turing states—and Impax does not dispute—that since June 15, 2016, Turing has continuously provided Impax with accurate and timely monthly and quarterly Pricing Data. Def.'s Mem. at 39. Turing contends that to the extent Impax bases its claims on Turing's past reporting deficiencies, Turing cured any such breaches and no further performance is outstanding. Id. According to Turing, specific performance is moot because Impax already has obtained the very relief it seeks. Id. at 39-40.
Impax, on the other hand, contends that while Turing may have improved its reporting, there is no reason to believe that it will continue to do so in the future, given Turing's history. Pl.'s Reply at 29. According to Impax, "for months and possibly years to come, Impax must continue relying on Turing to supply Pricing Data which Impax must report to CMS . . . remain[ing] at the whim of a party with a proven track record of delinquency and broken promises, without any indication of what Turing might do next." Id. Thus, argues Impax, summary judgment denying Impax one of the core protections to manage these risks—the right to seek specific performance of Turing's reporting obligations—is not appropriate. Id.
Specific performance is an equitable remedy granted by discretion of the Court. See Lucente v. International Business Machines Corp., 310 F.3d 243, 262 (2d Cir. 2002). A court may grant specific performance where money damages would not suffice, such as when "the subject matter of the particular contract is unique and has no established market value." Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 415 (2001) (internal quotation marks and citation omitted). In the instant case, it is undisputed that Turing has fully complied with its obligations to provide timely Pricing Data to Impax since June 15, 2016. Moreover, as Turing contends, Impax does not dispute that Turing has cured any past late reporting of Pricing Data and—despite pointing to Turing's prior history of late reporting—has not adduced any evidence indicating that it is likely that Turing may fail to comply in the future. Thus, the Court finds that granting specific performance under these circumstances—where Turing has continued to comply with its obligation to timely report Pricing Data since June 15, 2016—is unnecessary. See Marcus v. Lincolnshire Mgmt., Inc., 409 F.Supp.2d 474, 478-79 (S.D.N.Y. 2006) ("A present willingness by [defendant] to perform might well moot the claim for specific performance."). Moreover, as discussed, Impax is unable to prevail on any of its breach of contract claims because, by refusing to submit the proposed restatement, it has failed to perform its own obligations under the APA. This applies with equal force to breach of contract claims seeking specific performance. Ace Securities Corp. Home Equity Loan Trust, Series 2007-HE3 ex rel. HSBC Bank USA, Nat. Association v. DB Structured Products, Inc., 5 F.Supp.3d 543, 561 (S.D.N.Y. 2014) ("[A] plaintiff also must have substantially performed its own contractual duties in order for a court to grant specific performance.") (internal quotation marks and citation omitted). Accordingly, Turing's motion for summary judgment on Impax's claim for specific performance (Count 2 of the Amended Complaint) is GRANTED.
Turing moves for summary judgment on Count 4 of Impax's Amended Complaint, which claims that "if the Pricing Data Turing originally certified to Impax for Q3 and Q4 2015 were incorrect . . . then Turing's certification of inaccurate Pricing Data to Impax . . . is itself a breach of the [APA] . . . and was the but-for cause of Impax incurring (and continuing to incur) tens of millions of dollars of liability to state Medicaid agencies that it must pay and for which it has not been reimbursed." Am. Compl. ¶ 100. Turing contends that Impax is not entitled to recover because it failed to mitigate damages by refusing to restate the Pricing Data. Def.'s Mem. at 40. Impax, on the other hand, argues that "the duty to mitigate only calls for a party to take reasonable measures to minimize its damages, and does not require exposure to undue risk, burden, or expense." Pl.'s Reply at 27. According to Impax, "[b]ecause Turing's restatement is facially unreasonable, it also triggers no duty to mitigate, precluding summary judgment." Id. at 27-28.
Under New York law, a plaintiff in a breach of contract action has a duty to mitigate the damages that he incurs. U.S. Bank National Association v. Ables & Hall Builders, 696 F.Supp.2d 428, 440 (S.D.N.Y. 2010). The plaintiff cannot recover if he failed to mitigate his damages. Id. at 440-441. "This duty applies to those damages that the plaintiff could have avoided with reasonable effort and without undue risk, burden, or expense." Id. at 441. As Turing points out, whether a party took reasonable measures to minimize its damages is an objective test. See Rost v. Pfizer, Inc., 248 F.R.D. 417, 419-20 (S.D.N.Y. 2008) ("[B]ecause the second element of the mitigation standard asks for a determination of reasonableness, the test is an objective one. Thus, the trier of fact will be asked to examine what [plaintiff] actually did to [mitigate damages]. . . for the purpose of determining whether, under an objective standard, his actions reflected "reasonable efforts. . . . [Plaintiff's] subjective motivations . . . are irrelevant to the question of whether his conduct was objectively reasonable.") (alteration omitted); see also Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co. Americas, 262 F.R.D. 293, 298 (S.D.N.Y. 2009) ("Reasonableness cannot be judged solely by looking at the subjective actions of the [claimants].").
As discussed above, Impax has insisted that the relevant question with respect to its refusal to submit Turing's proposed restatement is whether its concerns about restating are subjectively reasonable. See Pl.'s Mem. at 19-24; Pl.'s Reply at 21. By arguing that the proposed restatement does not trigger a duty to mitigate because its concerns are subjectively reasonable, Impax attempts to "convert the mitigation test into a subjective one." See Rost, 248 F.R.D. at 420. Whether Impax's concerns about the proposed restatement are subjectively reasonable is irrelevant to the Court's determination of whether Impax's actions amount to a failure to mitigate. Thus, Impax has failed to establish that its failure to mitigate was objectively reasonable, particularly in view of its contractual obligation to restate. Moreover, as discussed, Impax is unable to prevail on any of its breach of contract claims because, by refusing to submit the proposed restatement, it has failed to perform its own obligations under the APA. Accordingly, Turing's motion for summary judgment on Impax's claim for breach of contract based on incorrect Pricing Data provided by Turing (Count 4 of the Amended Complaint) is GRANTED.
For the reasons set forth above, Impax's motion is GRANTED in part and DENIED in part, and Turing's motion is GRANTED in part and DENIED in part. The parties are directed to appear for a status conference on October 18, 2017 at 2:30pm at the United States Courthouse, 40 Foley Square, Courtroom 619, New York, NY 10007. The Clerk of the Court is respectfully directed to terminate the motions, Docs. 78, 82, 92, and 96.
It is SO ORDERED.
