Free Motion for Extension of Time - District Court of Delaware - Delaware

Case 1:08-cv-00052-GMS-LPS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) ) DR. REDDY'S LABORATORIES, INC., ) DR. REDDY'S LABORATORIES LIMITED, ) GENPHARM INC., GENPHARM, L.P., ) INTERPHARM HOLDINGS, INC., ) INTERPHARM, INC., MYLAN ) PHARMACEUTICALS INC., RANBAXY ) INC., RANBAXY LABORATORIES ) ) LIMITED, SUN INDIA ) PHARMACEUTICAL INDUSTRIES LIMITED (a/k/a SUN PHARMACEUTICAL ) INDUSTRIES LTD.), SYNTHON HOLDING ) ) B.V., SYNTHON B.V., SYNTHON ) LABORATORIES, INC., and SYNTHON ) PHARMACEUTICALS, INC., ) ) Defendants. ) FOREST LABORATORIES, INC., FOREST LABORATORIES HOLDINGS, LTD., MERZ PHARMA GMBH & CO. KGAA, and MERZ PHARMACEUTICALS GMBH,

C.A. No. 08-52 (GMS) (LPS)

PLAINTIFFS' MOTION FOR LEAVE TO TAKE JURISDICTIONAL DISCOVERY AND TO EXTEND THEIR TIME TO RESPOND TO SYNTHON'S MOTION TO DISMISS On March 12, 2008, defendants Synthon Laboratories, Inc. ("Synthon Labs"), Synthon Pharmaceuticals, Inc. ("Synthon Pharma"), Synthon Holding B.V. and Synthon B.V. (collectively "the Synthon entities" or "Synthon") moved to dismiss for lack of personal jurisdiction (D.I. 47). Plaintiffs Forest Laboratories, Inc., Forest Laboratories Holdings, Ltd., Merz Pharma GmbH & Co. KGaA and Merz Pharmaceuticals GmbH (collectively "Plaintiffs")

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hereby move for leave to take jurisdictional discovery and to extend their time to respond to Synthon's motion. INTRODUCTION Plaintiffs seek leave to take limited jurisdictional discovery for a 90-day period regarding the allegations raised by Synthon's motion to dismiss for lack of personal jurisdiction. There is a strong presumption in favor of allowing them to do so, and extensions are frequently agreed upon by the parties for that purpose without the need for judicial intervention. But despite Plaintiffs' best efforts, Synthon has refused to consent to a period of jurisdictional discovery or an extension of Plaintiffs' time to respond to its motion. Courts routinely grant jurisdictional discovery to a plaintiff faced with responding to a motion to dismiss for lack of personal jurisdiction, so long as the requested discovery is not clearly frivolous. The discovery that Plaintiffs seek here easily rises above this low threshold. Through an independent investigation of publicly-available documents, Plaintiffs have already found facts that support their request for jurisdictional discovery. Plaintiffs should be given an opportunity to further explore and build upon these facts ­ but can only do so by obtaining limited jurisdictional discovery from Synthon. Refusing to permit Plaintiffs to take jurisdictional discovery would be extremely prejudicial to Plaintiffs and to the Court's ultimate decision on the motion to dismiss. Without jurisdictional discovery, Plaintiffs will not be afforded the opportunity to test the allegations in Synthon's motion, to question Synthon's three declarants about their supporting submissions (D.I. 48-2, 48-3 & 48-4) or to examine the documents that bear upon their testimony. Collecting the evidence most relevant to Plaintiffs' response would also be impossible, as Synthon would be given carte blanche to disclose only the facts that are most helpful to its position, while ignoring

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those that are not. Similarly, the Court would have to decide Synthon's motion to dismiss in a vacuum, based solely upon evidence that was cherry-picked by Synthon. NATURE AND STAGE OF PROCEEDINGS Plaintiff Forest Laboratories, Inc. ("Forest Labs") is an innovative pharmaceutical company that identifies, develops and delivers new pharmaceutical products, focusing on the therapeutic areas of the central nervous, cardiovascular and respiratory systems. Plaintiff Forest Laboratories Holdings, Ltd. ("Forest Holdings") is a wholly-owned subsidiary of Forest Labs. Plaintiffs Merz Pharma GmbH & Co KGaA and Merz Pharmaceuticals GmbH (collectively "Merz") are international pharmaceutical companies engaged in the research and development of drugs for the treatment of psychiatric and neurological disorders. Merz is the assignee of U.S. Patent No. 5,061,703 ("the `703 patent"), entitled "Adamantane Derivatives in the Prevention and Treatment of Cerebral Ischemia." The `703 patent relates generally to a method for the prevention and treatment of cerebral ischemia using an adamantine derivative, including the derivative memantine hydrochloride. Plaintiff Forest Holdings is the exclusive licensee of the `703 patent. Forest Labs is the holder of New Drug Application ("NDA") No. 21-487 for memantine hydrochloride tablets, which are commercially marketed in the United States under the brand name NAMENDA®. NAMENDA® is FDA-approved for the treatment of moderate to severe dementia of the Alzheimer's type. (D.I. 48-5 at 4.) The `703 patent is listed in the U.S. Food and Drug Administration's ("FDA") Approved Drug Products with Therapeutic Equivalence Evaluations ("the Orange Book") as covering NAMENDA®. Fourteen companies have recently submitted Abbreviated New Drug Applications ("ANDAs") with accompanying Paragraph IV certifications to the FDA, pursuant to § 505(j) of the Federal Food, Drug and Cosmetic Act, seeking approval to commercially manufacture, use 3

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and sell a generic version of NAMENDA® prior to the expiration of the `703 patent. Under the provisions of the Hatch-Waxman Act, the submission of these ANDAs constitutes infringement of the `703 patent. See 35 U.S.C. § 271(e)(2)(A). In order to trigger a 30-month stay of approval of the ANDAs, Plaintiffs were required to file an action for infringement of the `703 patent within forty-five days of receiving notice of the respective Paragraph IV certifications. 21 U.S.C. § 355(j)(5)(B)(iii). As a result, on January 10, 2008, Plaintiffs filed Complaints in this District (Civil Action Nos. 08-21 and 08-22) against a number of defendants. On January 25, 2008, Plaintiffs filed this action (Civil Action No. 08-52) against additional defendants. After that Complaint was filed, Plaintiffs received notice that Synthon had submitted a Paragraph IV certification for a generic memantine product. On February 15, 2008, Plaintiffs amended their Complaint in this action to add the Synthon entities as defendants. Only two of the thirteen ANDA filers have moved to dismiss for lack of personal jurisdiction. Orchid Chemicals and Pharmaceuticals, Ltd. ("Orchid India") filed its motion to dismiss for lack of personal jurisdiction (D.I. 43 in 08-21) on March 3, 2008. Orchid India has since consented to limited jurisdictional discovery and entered into a stipulation with Plaintiffs (D.I. 54 in 08-21) extending Plaintiffs' time to respond to its motion until the earlier of (a) 10 days following the completion of jurisdictional discovery, or (b) June 18, 2008. Synthon filed its motion to dismiss for lack of personal jurisdiction on March 12, 2008.1 Unlike Orchid India, Synthon has refused to consent to jurisdictional discovery or to an extension of Plaintiffs' time to respond to its motion.

1

Given the possible consequences of Synthon's motion to dismiss, Plaintiffs filed a second suit against Synthon in the Eastern District of North Carolina (No. 5:08-CV-00150-D) on March 20, 2008. Plaintiffs maintain that Synthon is properly subject to personal jurisdiction
(Continued...)

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ARGUMENT I. The Relevant Legal Standards As a general matter, "jurisdictional discovery should be allowed unless the plaintiff's claim is `clearly frivolous.'" Mass. Sch. of Law of Andover v. Am. Bar Ass'n, 107 F.3d 1026, 1042 (3d Cir. 1997) (internal citations omitted); see also Energy Transp. Group, Inc. v. Sonic Innovations, Inc., No. 05-422-GMS, slip. op. at 3 (D. Del. Dec. 4, 2006) (allowing jurisdictional discovery); Compagnie Des Bauxites de Guinee v. L'Union Atlantique S.A. d'Assurances, 723 F.2d 357, 362 (3d Cir. 1983) (same); McNeil Nutritionals, LLC v. Sugar Ass'n, No. 05-69-GMS, 2005 U.S. Dist. LEXIS 7628, at *13 (D. Del. 2005) (same). "Thus, resolution of this motion begins with the presumption in favor of allowing discovery to establish jurisdiction." See Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474 (D. Del. 1995); McNeil Nutritionals, 2005 U.S. Dist. LEXIS 7628, at *4. Jurisdictional discovery is necessary and appropriate because the defendant often has complete control of facts necessary to establish personal jurisdiction. See Compagnie Des Bauxites, 723 F.2d at 362; see also Hansen, 163 F.R.D. at 476 ("Courts have recognized that facts which would establish personal jurisdiction over the defendant are often in the exclusive control of the defendant. As such, a plaintiff may be unable, without some discovery, to properly respond to a motion to dismiss pursuant to Rule 12(b)(2), and a court will therefore allow some discovery.") (internal citation omitted). Given this inherent inequity in the parties' positions, this District has repeatedly held that leave to take jurisdictional discovery should be freely granted,

in the District of Delaware, and that judicial economy would be promoted if all of Plaintiffs' claims for infringement of the `703 patent are addressed in this District.

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especially when the defendant relies heavily upon affidavits and declarations in support of its motion to dismiss (as Synthon does): The rationale for this rule is that the plaintiff may be unable to ascertain the extent of the defendant's contacts with the forum state, particularly when that defendant is a corporation, unless some discovery is permitted. A plaintiff who is a total stranger to a corporation should not be required, unless he has been undiligent, to try such an issue on affidavits without the benefit of full discovery. Hansen, 163 F.R.D. at 473-74 (emphasis added). This District has also made a clear distinction between the relatively low standard for permitting jurisdictional discovery and the comparatively higher bar that is applied later when evaluating a plaintiff's assertion that the Court has personal jurisdiction over a defendant: Although a plaintiff is ultimately required to establish a prima facie case in support of the exercise of personal jurisdiction over a defendant, a plaintiff is not required to embark on that task unassisted. Rather, a plaintiff is entitled to take jurisdictional discovery in order to establish its prima facie case. In other words, the burden to establish a prima facie case in support of jurisdiction arises after the nonmoving party has had the opportunity to take jurisdictional discovery. Tristrata Tech. Inc. v. Neoteric Cosmetics, Inc., No. 96-227-JJF, slip. op. at 2 (D. Del. June 30, 1998) (emphasis added) (citing Joint Stock Soc'y v. Heublein, Inc., 936 F. Supp. 177, 192 (D. Del. 1996)); see also McNeil Nutritionals, 2005 U.S. Dist. LEXIS 7628, at *4 ("Although the plaintiff bears the burden of demonstrating the facts that support personal jurisdiction, courts are to assist the plaintiff by allowing jurisdictional discovery unless the plaintiff's claim is `clearly frivolous.'") (internal citations omitted). For purposes of deciding this motion, the Court need only consider whether Plaintiffs' claim for jurisdictional discovery is clearly frivolous.

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II.

Jurisdictional Discovery From Synthon Is Warranted In This Case Plaintiffs' assertion that this Court has personal jurisdiction over Synthon is far from

"clearly frivolous" and goes well beyond the "bare allegations" set forth in the Complaint. See, e.g., Hansen, 163 F.R.D. at 476 ("[A] plaintiff may not rely on the bare allegations in his complaint to warrant further discovery."). Through their own investigation, Plaintiffs have identified facts that suggest that jurisdictional discovery over each of the Synthon entities is warranted in this case. Plaintiffs therefore request a 90-day period for jurisdictional discovery from Synthon, starting on the date that the Court grants Plaintiffs' motion. First, at least two of Synthon's pharmaceutical products are sold in Delaware. According to state-by-state data obtained by Plaintiffs from IMS Health, amlodipine besylate and zolpidem tartrate manufactured by Synthon Pharma are sold by retailers in Delaware. (Ex. A.) But this sales data is hardly surprising. In a supporting declaration to its Motion to Dismiss, the Vice President and General Counsel of Synthon Pharma admitted that "Synthon Pharms holds a Drug Wholesalers License in the State of Delaware, issued by the Delaware Pharmacy Board, in order to permit others (mainly drug wholesalers) to ship product into the State of Delaware." (D.I. 48-4 at ¶ 4; see also D.I. 48 at 11, 15.) Synthon Pharma's capacity to sell drugs in Delaware, even if through a middleman, is not a contact with Delaware that is "clearly frivolous." See, e.g., Aladdin Knowledge Sys. Ltd. v. Feitan Techs. Co., No. 05-149-GMS, slip. op. at 6 (D. Del. Feb. 24, 2006) (finding that use of a distributor with the authority to distribute the accused products anywhere in the United States, including Delaware, was a "non-frivolous" contact that supported a grant of jurisdictional discovery). As a result, Plaintiffs should be given leave to take jurisdictional discovery concerning all pharmaceutical products that Synthon may distribute, sell or offer for sale in Delaware. 7

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Second, Plaintiffs have determined that Synthon Pharma had contractual ties to a company, Ventiv Health, Inc. ("Ventiv"), which was incorporated in Delaware during the relevant time period.2 According to a February 2004 "PR newswire" publication, Synthon Pharma and Ventiv entered into "a multi-year sales and marketing agreement" for the promotion of a Synthon pharmaceutical product (Pexeva®). (Ex. B.) Under the terms of the agreement, Ventiv initially provided eight district managers and one hundred full-time sales representatives to drive sales and market share of Pexeva® among targeted psychiatrists and primary care physicians. (Id.) In addition, Ventiv provided "full operational support and project management services" to Synthon Pharma's sales teams. (Id.) Synthon should not be able to use sales representatives from other companies to sell its own products across the United States (including Delaware) and then use these same sales representatives to shield it from jurisdictional discovery on that grounds that it does not have its own sales force.3 Plaintiffs should be permitted to take jurisdictional discovery on the sales and marketing activities that may have occurred in Delaware preceding, during and as a result of Synthon Pharma's "multi-year sales and marketing agreement" with Ventiv or any other Delaware company. See, e.g., Aladdin Knowledge, No. 05-149-GMS, at 5 (finding that defendants' partnerships with several Delaware corporations gave rise to an inference that

2

Upon information and belief, Ventiv was incorporated in Delaware from January 2000 until December 2006. In his supporting declaration to Synthon's motion, the Vice President and General Counsel of Synthon Pharma stated that "Synthon Pharms does not have a sales force, and, when it did, it did not have a representative in the State of Delaware." (D.I. 48-4 at ¶ 6.) However, his declaration is silent regarding Synthon's relationships with other companies that may effectively act as Synthon's sales force, as Ventiv did.

3

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jurisdictional discovery might yield "something more" and granting leave to conduct jurisdictional discovery). Third, Synthon Labs was originally incorporated in Delaware. According to the Certificate of Incorporation filed with the Delaware Secretary of State, Synthon Labs was incorporated in Delaware in November 2003. (Ex. C.) Approximately six months later, Synthon Labs filed a certificate of dissolution. Plaintiffs should be given leave to take jurisdictional discovery on the activities that may have occurred in Delaware preceding dissolution, which can hardly be considered "clearly frivolous." See Pfizer Inc. v. Synthon Holding, B.V., 386 F. Supp. 2d 666, 677 (M.D.N.C. 2005) ("[T]he Court further concludes that there are significant indications here that Synthon Labs is simply an `alter ego' of Synthon Pharma established by Synthon Holding for jurisdictional purposes."). Jurisdictional discovery over Synthon B.V. and Synthon Holding B.V. is also warranted. "Delaware law provides two theories under which a court may establish jurisdiction over a parent corporation based on jurisdiction over a subsidiary: the alter ego theory and the agency theory." See Applied Biosystems, Inc. v. Cruachem, Ltd., 772 F. Supp. 1458, 1463 (D. Del. 1991). Based upon Plaintiffs' understanding of Synthon's corporate structure, Plaintiffs believe that Synthon B.V. and Synthon Holding B.V. are controlling the Synthon entities in the United States. Synthon B.V. is a Dutch company that "was involved in both the development of the generic memantine hydrochloride product and the preparation and assembly of the ANDA which is the subject of the present litigation." (D.I. 48 at 6.) Synthon Holding B.V. is also a Dutch company and is the ultimate parent of each of the other three Synthon defendants. (Id.) And tellingly, at least one court has already found that Synthon B.V. and Synthon Holding B.V. "dominate[] and control[]" Synthon Labs. See Pfizer, 386 F. Supp. 2d at 670.

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These facts show that further jurisdictional discovery is warranted from Synthon before Plaintiffs can respond to Synthon's motion to dismiss for lack of personal jurisdiction. See Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir. 2003) ("If a plaintiff presents factual allegations that suggest with reasonable particularity the possible existence of the requisite contacts between the party and the forum state, the plaintiff's right to conduct jurisdictional discovery should be sustained." (internal citations, brackets and quotations omitted)). But instead of agreeing to jurisdictional discovery ­ as defendant Orchid India did in the companion case (D.I. 54 in 08-21) ­ Synthon has forced Plaintiffs to file this motion. Notably, Synthon has refused Plaintiffs' requests for jurisdictional discovery on the basis that such discovery was "no more than an attempt to fish for jurisdictional facts." (Ex. D.) But contrary to Synthon's insinuation, this District has held that such bald assertions about "fishing expeditions" should be ignored when determining whether to grant permission for jurisdictional discovery: The condemnation of plaintiff's proposed [jurisdictional discovery] as a "fishing expedition" was unwarranted. When the fish is identified, and the question is whether it is in the pond, we know no reason to deny a plaintiff the customary license. Hansen, 163 F.R.D. at 474. III. Plaintiffs' Time To Respond To Synthon's Motion To Dismiss Should Be Extended The Court may, for good cause, extend the time to respond to a motion if, as here, the request is made before the original time expires. Fed. R. Civ. P. 6(b)(1)(A). This district has been liberal in granting such requests. See, e.g., Williams v. Potter, 384 F. Supp. 2d 730, 732 n.2 (D. Del. 2005) (noting that the plaintiff had been granted an extension of time to respond to defendant's motion to dismiss); Anderson v. McIntosh Inn, 295 F. Supp. 2d 412, 416 (D. Del. 2003) (granting motions for extension of time to answer in the summary judgment context); 10

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Adams v. Sheldon, No. 04-251-JJF, 2007 WL 2936193, at *4 (D. Del. Oct. 5, 2007) (granting plaintiff's motion to extend time); Francisco v. Corr. Med. Sys., No. 03-499-JJF, 2005 WL 2304178, at *4 (D. Del. Sept. 20, 2005) (granting defendant's motion to extend time where the relevant time period had expired). Plaintiffs have been diligent in seeking an extension of time to respond to Synthon's motion.4 Plaintiffs first asked counsel for Synthon for an extension of time to respond to Synthon's motion on Friday, March 14, 2008, two days after Synthon's motion was filed. Having received no subsequent response, Plaintiffs contacted counsel for Synthon on Wednesday, March 19, 2008 with the same request for an extension. (Ex. E.) Synthon again did not respond to this inquiry. On Tuesday, March 25, 2008, Plaintiffs again asked for an extension of time. (Ex. F.) Synthon finally responded by refusing to agree to extend Plaintiffs' time to respond. (Ex. D.) Synthon has not provided a specific rationale for its refusal to extend Plaintiffs' time to respond to its motion to dismiss, and Plaintiffs are not aware of one. Neither Synthon nor the other Defendants will be prejudiced if Plaintiffs are granted an extension in their time to respond to Synthon's motion, as there is no Scheduling Order in place. In addition, Orchid India has already consented to a 90-day period of jurisdictional discovery in connection with its motion to dismiss for lack of personal jurisdiction in the companion case (D.I. 54 in 08-21). That discovery period will not end until mid-June 2008. A concurrent period of jurisdictional

4

At the onset of this case, Synthon itself claimed to "need additional time to investigate the issue of whether this District has personal jurisdiction over the Synthon Entities." (D.I. 46 at 2.) But now, Synthon posits that its own filings and declarations should provide all the information that Plaintiffs need to respond, thereby eliminating the need for an extension of time.

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discovery from Synthon should have no effect on the progress of this case, given that the two related actions will likely be consolidated eventually. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court grant their Motion for Leave to Take Jurisdictional Discovery and to Extend Their Time to Answer Synthon's Motion to Dismiss. MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Maryellen Noreika (#3208)
Jack B. Blumenfeld (#1014) Maryellen Noreika (#3208) 1201 North Market Street P.O. Box 1347 Wilmington, DE 19899-1347 (302) 658-9200 [email protected] [email protected] Attorneys for Plaintiffs Of Counsel: John Desmarais Gerald J. Flattmann, Jr. Melanie R. Rupert KIRKLAND & ELLIS LLP Citigroup Center 153 East 53rd Street New York, NY 10022 (212) 446-4800 F. Dominic Cerrito Daniel L. Malone Eric C. Stops JONES DAY 222 East 41st Street New York, NY 10017 (212) 326-3939 March 27, 2008
2170811

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RULE 7.1.1 CERTIFICATION I hereby certify that the subject of the foregoing motion has been discussed with counsel for the Synthon defendants and that the parties have not reached agreement.

/s/ Maryellen Noreika (#3208)
Maryellen Noreika (#3208)

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CERTIFICATE OF SERVICE I hereby certify that on March 27, 2008 I electronically filed the foregoing with the Clerk of the Court using CM/ECF, which will send notification of such filing to:. Richard L. Horwitz, Esquire David E. Moore, Esquire POTTER ANDERSON & CORROON LLP John M. Seaman, Esquire Kevin G. Abrams, Esquire ABRAMS & LASTER LLP Elizabeth M. McGeever, Esquire Melissa N. Donimirski, Esquire PRICKETT, JONES & ELLIOTT, P.A. Joseph S. Naylor, Esquire BALICK & BALICK, LLC I further certify that I caused to be served copies of the foregoing document on March 27, 2008 upon the following in the manner indicated: Richard L. Horwitz, Esquire David E. Moore, Esquire POTTER ANDERSON & CORROON LLP 1313 North Market Street ­ 6th Floor Wilmington, DE 19801 Attorneys for Interpharm Holdings, Inc. and Interpharm, Inc. John M. Seaman, Esquire Kevin G. Abrams, Esquire ABRAMS & LASTER LLP 20 Montchanin Road, Suite 200 Wilmington, DE 19807 Attorneys for Kendle International Inc. and Sun India Pharmaceutical Industries Limited (a/k/a Sun Pharmaceutical Industries Limited) VIA ELECTRONIC MAIL and HAND DELIVERY

VIA ELECTRONIC MAIL

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James F. Hurst, Esquire Charles B. Klein, Esquire Jay L. Levine, Esquire WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, IL 60601 Attorneys for Kendle International Inc. and Sun India Pharmaceutical Industries Limited (a/k/a Sun Pharmaceutical Industries Limited) Louis H. Weinstein, Esquire Bruce D. Radin, Esquire BUDD LARNER, P.C. 150 John F. Kennedy Parkway Short Hills, NJ 07078-2703 Attorney for Dr. Reddy's Laboratories, Inc. and Dr. Reddy's Laboratories Limited William Zimmerman, Esquire Knobbe Martens Olson & Bear LLP 2040 Main Street 14th Floor Irvine, CA 92614-3641 Attorneys for Ranbaxy Inc. and Ranbaxy Laboratories Limited Jeffrey A. Hovden, Esquire FROMMER LAWRENCE & HAUG LLP 745 Fifth Avenue New York, NY 10151 Attorneys for Genpharm, L.P., Genpharm Inc. and Mylan Pharmaceuticals Inc. Elizabeth M. McGeever, Esquire Melissa N. Donimirski, Esquire PRICKETT, JONES & ELLIOTT, P.A. 1310 King Street Wilmington, DE 19801 Attorneys for Synthon Holding B.V., Synthon B.V., Synthon Laboratories, Inc. and Synthon Pharmaceuticals, Inc.

VIA ELECTRONIC MAIL

VIA ELECTRONIC MAIL

VIA ELECTRONIC MAIL

VIA ELECTRONIC MAIL

VIA ELECTRONIC MAIL and HAND DELIVERY

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E. Anthony Figg, Esquire Joseph A. Hynds, Esquire Lisa N. Phillips, Esquire ROTHWELL, FIGG, ERNST & MANBECK, P.C. 1425 K. Street, N.W. Suite 800 Washington, DC 20005 Attorneys for Synthon Holding B.V., Synthon B.V., Synthon Laboratories, Inc. and Synthon Pharmaceuticals, Inc. Joseph S. Naylor, Esquire BALICK & BALICK, LLC 711 North King Street Wilmington, DE 19801 Attorneys Genpharm Inc., Genpharm, L.P. and Mylan Pharmaceuticals Inc.

VIA ELECTRONIC MAIL

VIA ELECTRONIC MAIL and HAND DELIVERY

/s/ Maryellen Noreika (#3208)
Maryellen Noreika (#3208)

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