Elorac, Inc. v. Henson et alMOTIONN.D. Ill.April 15, 2019IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ELORAC, INC., Plaintiff, v. RICK HENSON, KMM PHARMACEUTICALS, LLC, and STAYMA CONSULTING SERVICES, LLC; MISSION PHARMACAL COMPANY; AND BIOCOMP PHARMA, INC., Defendants. ) ) ) ) No. 2016-cv-11522 ) ) Judge Harry D. Leinenweber ) Magistrate Judge Maria Valdez ) ) ) ) ) ) DEFENDANTS’ RICK HENSON, KMM PHARMCEUTICALS LLC AND STAYMA CONSULTING SERVICES LLC’S MOTION FOR ATTORNEYS’ FEES AND EXPENSES PURSUANT TO FED R.CIV.P.54 I. INTRODUCTION The federal Lanham Act, on which Plaintiff Elorac, Inc., brought this action, provides that the Court “may award reasonable attorney fees to the prevailing party” “in exceptional cases.” 15 U.S.C., § 1117(a). Defendants Rick Henson, KMM Pharmaceuticals, LLC, Stayma Consulting Services, LLC (jointly “KMM”) are the prevailing parties here because the Court ultimately dismissed Plaintiff’s claims for failure to prosecute. Dkt. No. 230. However, Plaintiff did not abandon its claims until after long and very aggressive litigation, including extensive discovery over issues that Plaintiff knew or should have known had no merit from day one. KMM should never have had to bear the cost of this litigation in the first place, and the Court should (a) find that this case is exceptional and (b) either award KMM its attorneys’ fees and expenses as requested in this motion or enter an order pursuant to this Court’s Local Rule 54.3(b) directing the parties to comply with the procedure set out in that rule as a post-filing procedure. Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 1 of 15 PageID #:3668 2 The Supreme Court has explained that, contrary to the view previously expressed by many lower courts, a case may be “exceptional,” and therefore appropriate for a fee award to the prevailing party, even if the losing party did nothing sanctionable and even if its legal position was not entirely frivolous. [A]n “exceptional” case is simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated. District courts may determine whether a case is “exceptional” in the case-by-case exercise of their discretion, considering the totality of the circumstances. Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014).1 The Seventh Circuit has explained that a significant “practical concern is the potential for businesses to use Lanham Act litigation for strategic purposes—not to obtain a judgment or defeat a claim but to obtain a competitive advantage independent of the outcome of the case by piling litigation costs on a competitor.” Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC, 626 F.3d 958, 962 (7th Cir. 2010). This case is such an exceptional case. Plaintiff sued a competitor for false advertising, without ever testing its most serious claims, while in possession of a test report (Dkt. No. 71-4) indicating that Plaintiff’s claims had no basis, pressed the Court for a preliminary injunction that would have removed a lawfully competing product from the market, and then rather than dismissing the case (Dkt. No. 27), required KMM to remain in suspense while Plaintiff took most of a year to decide whether to continue or abandon the case, and then ultimately abandoned the case, due to an apparent inability to find attorneys willing to press forward. Plaintiff’s claims were doomed from the start by lack of supporting evidence, by failure to test the KMM Product to verify 1 Although Octane Fitness was a patent case, construing a different fee-shifting statute, the Court indicated that the same standard should apply in Lanham Act cases. Octane Fitness, 572 U.S. at 554. See Tobinick v. Novella, 884 F.3d 1110, 1117-18 (11th Cir. 2018) (joining “[e]very circuit to have considered the issue” in holding that Octane Fitness applies to Lanham Act cases. Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 2 of 15 PageID #:3669 3 any of Plaintiff’s claims before filing suit and seeking injunctive relief, and by Plaintiff’s knowledge that its claims could not ultimately succeed. As will be shown below in more detail: Plaintiff’s claims that the KMM Product was falsely advertised as “extended release” were doomed by the indisputable fact that the KMM Product does have an extended release profile, and by Plaintiff’s own allegation that no pharmacist or patient ever knew that the KMM Product claimed to be extended-release. Plaintiff’s claims that KMM advertised the KMM Product as a “generic equivalent” of UltraSal-ER were doomed by the fact that KMM never actually made such a claim, and by Plaintiff’s inability to show that anyone was misled by anything KMM said into mistakenly believing that the products were “generic equivalents.” Plaintiff’s claims that KMM deceived the FDA were doomed by that agency’s exclusive jurisdiction over such claims. All Plaintiff’s claims were doomed by the lack of materiality of the allegedly false advertising. II. BACKGROUND FACTUAL CONTEXT Plaintiff and KMM market competing prescription-only topical wart relief products containing a 28.5% solution of salicylic acid as the sole active ingredient. Plaintiff’s product is marketed under the brand name “UltraSal-ER.” KMM’s product (the “KMM Product”) is unbranded, and labeled only by the generic name and strength of its active ingredient. See Dkt No. 55 at 125. Plaintiff’s CEO provided a candid clue to the motivation underlying this suit when he explained his attitude toward unbranded competitors in deposition: “I don’t particularly like it. I think they’re cannibals and parasites on the system, to tell you the truth.” Bernstein Deposition at 119:22-24. Plaintiff previously marketed a similar product called “Virasal,” which had a release profile similar to both of the products in issue here, but which Plaintiff had not marketed as “extended release.” Faced with competition for that product, Plaintiff decided that it might be better able to differentiate its product from the competition by incorporating a patented release mechanism, even Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 3 of 15 PageID #:3670 4 though the specific mechanism it chose to incorporate added no significant benefits to the patients who used it. Nonetheless, Plaintiff aggressively marketed the patented release mechanism as giving its new product, “Ultra-Sal ER,” unique properties that are not, in fact, unique. See Dkt. No. 174 at 5-8, ¶¶ 20-22, 31, 34. When KMM launched its competing product, KMM did not initially market the extended- release feature of the product, just as Plaintiff had not marketed that feature of Virasal. But the KMM Product still gained market share from Ultra-Sal ER. Initially, Plaintiff responded to the new competition by a campaign - outlined in KMM’s Counterclaims - to discredit KMM and to persuade the independent providers of database services to pharmacists that the KMM Product should not be in the same product category as Ultra-Sal ER because the KMM Product supposedly did not have an extended-release profile. Plaintiff made such claims despite understanding that the KMM Product was substantially identical to Plaintiff’s own Virasal product, and with full knowledge that Virasal and Ultra-Sal ER showed similar release profiles. Meanwhile, KMM developed a new label explicitly claiming an extended release profile, and submitted that label to the FDA and to the databases companies. Because the product itself was not changed, and the originally approved label was still accurate, KMM did not relabel the product that was already out on the market. As a result, Plaintiff alleged that, “Defendants did not use the newly fabricated ER label on the actual KMM Product that was manufactured, marketed, and sold.” Dkt. No. 174, Second Amended Complaint (“2AC”) at 9, ¶¶ 38, 39. This allegation was fatal to Plaintiff’s claims, because Plaintiff could not possibly have been harmed by claims made on a label KMM had not actually used.2 It was not plausible that that any pharmacist or consumer who believed that an extended release profile was material to the purchasing decision 2 KMM did release product bearing the new label, as its customers used up their original purchases of the product with its original label. Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 4 of 15 PageID #:3671 5 would have purchased the KMM Product - whose label did not identify it as being “extended release” during the time covered by Plaintiff’s allegations - instead of a prescribed product that specifically did claim to be extended release. Nonetheless, Plaintiff filed this action for false advertising based on a false contention that the KMM Product could not be extended-release,3 and on the equally unsubstantiated contention that Defendants were advertising the KMM Product as a “generic equivalent” to UltraSal-ER. Plaintiff leveled the latter accusation without any evidence that KMM had ever claimed such equivalence, and it is undisputed that KMM not only made no such claim of generic equivalence but explicitly disclaimed generic equivalence in its promotional materials. In response to Plaintiff’s suit, KMM commissioned new comparative tests, which confirmed that Virasal, UltraSal-ER, and the KMM Product all have extended-release profiles. See Dkt. No. 85 at 14. Instead of performing new tests itself, Plaintiff doubled down by asserting a series of new allegations in addition to the debunked claim underlying its original complaint. The new allegations were no more plausible. III. WHY PLAINTIFF’S CLAIMS WERE DOOMED FROM THE START Section 43(a)(1)(B) of the Lanham Act forbids the use of any “false or misleading description of fact, or false or misleading representation of fact, which in commercial advertising or promotion, misrepresents the nature, characteristics, [or] qualities ... of [the seller’s] or another person’s goods....” 15 U.S.C. § 1125(a)(1)(B). Fundamentally, as there was no claim for patent infringement or trademark infringement, Plaintiff’s claims really boiled down to an objection to 3 For example, Plaintiff’s preliminary injunction brief asserted that, “In fact, only one extended- release salicylic acid formulation is available in the United States, and Elorac holds an exclusive license to use that formulation in UltraSal-ER. Shefer Decl. at ¶¶ 3, 5. Consequently, the claim on the KMM Product’s label that it is an ‘extended release’ salicylic acid product is false.” Dkt. No. 28 at 13. As Plaintiff well knew, however, Plaintiff’s own Virasal product had very similar release characteristics, even though it did not share the patented release mechanism of UltraSal-ER. Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 5 of 15 PageID #:3672 6 the mere fact that KMM called attention to the identity of the single active ingredient in both products. This case, therefore, would have been governed by a principle set down more than a century ago by Mr. Justice Holmes, in a case involving competing bottled waters: The real intent of the plaintiff’s bill, it seems to us, is to extend the monopoly of such trademark or tradename as she may have to a monopoly of her type of bitter water, by preventing manufacturers from telling the public in a way that will be understood, what they are copying and trying to sell. But the plaintiff has no patent for the water, and the defendants have a right to reproduce it as nearly as they can. They have a right to tell the public what they are doing, and to get whatever share they can in the popularity of the water by advertising that they are trying to make the same article, and think that they succeed. Saxlehner v. Wagner, 216 U.S. 375, 380 (1910). The intervening century has not changed the fundamental principle. “Courts have long recognized that one who has lawfully copied another’s product can tell the public what he has copied.” Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526, 545 (5th Cir. 1998). Plaintiff’s only “evidence” in support of any of its claims were the declarations of its principals, based on nothing but claimed knowledge and experience. The Seventh Circuit has instructed that such an opinion is not even admissible: A court should not “admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); see also Finn v. Warren County, 768 F.3d 441, 452 (6th Cir.2014) (“the ‘knowledge’ requirement of Rule 702 requires the expert to provide more than a subjective belief or unsupported speculation”); Guile v. United States, 422 F.3d 221, 227 (5th Cir.2005) (“we look to the basis of the expert’s opinion, and not the bare opinion alone. A claim cannot stand or fall on the mere ipse dixit of a credentialed witness”); McClain v. Metabolife International Inc., 401 F.3d 1233, 1242 (11th Cir.2005). Rowe v. Gibson, 798 F.3d 622, 627 (7th Cir. 2015). One Judge in this District has recognized that such a conclusion, without supporting facts, would not even pass the standard for plausibility in pleading: Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 6 of 15 PageID #:3673 7 Superficially, Plaintiff’s arguments suggest that she has support for her allegation of falsity, but, upon closer examination, the allegations on which Plaintiff relies require a “leap [ ] made through nothing but speculation” in order to reach the conclusion of falsity Plaintiff advances. Like the false advertising claim in Hodges [v. Vitamin Shoppe, Inc., 2014 WL 200270, at *3 (D.N.J. 2014)], “[t]he assertion that the Product is ineffective appears … to be based on Plaintiff’s own conclusion as to the inability of the Product’s … ingredients … to deliver the promised benefits.” Id. For this reason, Plaintiff’s false advertising claim “does not meet the Rule 8(a) standard articulated by Iqbal, much less Rule 9(b)’s requirement that the circumstances constituting fraud must be stated with particularity.” Id. at *5. Spector v. Mondelez Int’l, Inc., 2017 WL 4283711, * 5 (N.D. Ill., 2017) (Durkin, J.). Plaintiff could not establish any of its claims, for several reasons. A. Plaintiff’s Claims Based on “Extended Release” Were Doomed Plaintiff could not show that any particular release profile was material to any purchasing or dispensing decision because every pharmacist who dispensed the KMM Product, and every consumer who bought it, saw that the KMM Product did not claim to be extended release. In any event, the KMM Product does, and always did, have extended release properties, whether it said so on the label or not. When Plaintiff filed this action, Plaintiff already had information indicating that the KMM Product had extended release properties, and none indicating that it did not. For this reason, Plaintiff’s communications to the database companies - and its filings with this Court - repeatedly emphasize that the unique feature of UltraSal-ER is its specific patented release mechanism, even though Plaintiff never contended that the KMM Product infringes the patent. There are other, unpatented, extended release mechanisms, and Plaintiff never had reason to doubt that the KMM Product used one of those other mechanisms to achieve an extended release. B. Plaintiff’s Claims Based on “Generic Equivalence” Were Doomed Defendants never represented to the FDA, the database companies or anyone else that the KMM Product was a generic equivalent of UltraSal-ER, and explicitly disclaimed generic equivalence in its promotional materials. Plaintiff had access to the KMM Product label and Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 7 of 15 PageID #:3674 8 package insert, but neither of those says anything about being equivalent to anything. Plaintiff’s claims were based on speculation that KMM must have asserted equivalence, because one of the major pharmaceutical databases listed the KMM Product in the same product category as UltraSal- ER. Plaintiff never said exactly what the databases reported about the KMM Product, so there was no evidence to support the inferences on which Plaintiff bases its claims. The FDA, and only the FDA, determines “generic equivalence” among pharmaceutical products, and neither FDA nor any database company could possibly be deceived on that score because no pharmaceutical product can, strictly speaking, be a generic equivalent of any other unless the FDA has identified it as such in the FDA’s “Orange Book.” Health care providers cannot have been deceived by anything alleged here because there was no evidence that any health care provider ever saw any information about the KMM Product; Plaintiff affirmatively alleged that Defendants did not advertise to physicians (¶ 23). Pharmacists cannot have been deceived by anything alleged here because the databases all report that the products are not in the Orange Book, and therefore could not be “generic equivalents.” In any event, what Defendants actually said to the database companies and to potential buyers conclusively disproved Plaintiff’s claims. Defendants explicitly denied that they were claiming “generic equivalence.” Defendants informed the database companies - entirely accurately - that the KMM Product had the same amount of the same active ingredient as UltraSal- ER. The database companies used that information as they saw fit to use it. Where UltraSal-ER and the KMM Product were the only 28.5% salicylic acid products on the market, it was reasonable to consider them to be in the same category, regardless of release rate. Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 8 of 15 PageID #:3675 9 KMM’s statements to the database companies could not, therefore, possibly have confused or misled the database companies in any material way, as the court in U.S. Pharmaceutical Corp. v. Trigen Laboratories, Inc., 2011 WL 446148, *11 (N.D.Ga. 2011) explained: The relevant statements or actions are Trigen’s statement to the drug database companies that its Vitamin C can be compared to ProAscorb, its statement to the drug database companies that USPC’s Supplements are reference drugs, and its act of requesting and allowing the database linkage between its supplements and USPC’s Supplements. It is not credible to claim that database companies are misled by the information provided to them by Trigen. Id. at *8. “The database companies classify the drugs by following their internal operating procedures, and they do so independent of a manufacturer’s classification request or demand.” Id. at *11. The database companies follow internal processes to create generic alphanumeric identifiers based on a drug’s active ingredient, strength, dosage, and route of administration. If two drugs are identical across those four attributes then their generic alphanumeric identifiers will also be the same, indicating that they are pharmaceutically equivalent. Two drugs with the same generic identifier are “linked,” meaning that searching for one drug in the database will retrieve information on both drugs. When manufacturers submit drug information for listing in a database, they sometimes indicate that their drug should be linked to a competitor’s drug, but a drug database company only links them if the two drugs have the same active ingredient, strength, dosage, and route of administration. Id. at *4. Neither physicians nor pharmacists can have been confused or misled by the mere placement of two products by one of the database companies into the same general classification. C. Plaintiff’s Claims of Fraud on the FDA Were Doomed To the extent that Plaintiff alleged the possibility of a fraud on the FDA itself, such claims are not even justiciable because they would necessarily fall within the exclusive domain of the FDA. The federal Food, Drug & Cosmetics Act (“FDCA”) states that all proceedings for the Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 9 of 15 PageID #:3676 10 enforcement of its provisions “shall be by and in the name of the United States.” 21 U.S.C. § 337(a). Those enforcement powers include the regulation of “adulterated” and “misbranded” drugs. “A claim cannot stand if it comes ‘too close to the exclusive enforcement domain of the FDA.’” Pediamed Pharms., Inc. v. Breckenridge Pharm., Inc., 419 F.Supp. 2d 715, 723 (D. Md. 2006), quoting Summit Tech., Inc. v. High-Line Med. Instruments Co., 922 F.Supp. 299, 306 (C.D.Cal. 1996). Accord, Schering-Plough Healthcare Products, Inc. v. Schwartz Pharma, Inc., 547 F.Supp. 2d 939, 944 (E.D.Wis. 2008). A private party “is not empowered to enforce independently the FDCA.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1139 (4th Cir. 1993), cert. denied, 510 U.S. 1197 (1994) (“An attempt, by ingenious pleading, to escape one principle of law by making it appear that another not truly appropriate rule is applicable appears to have been attempted”). See also Healthpoint, Ltd. v. Stratus Pharmaceuticals, Inc., 273 F.Supp.2d 769, 787 (W.D. Tex. 2001) (“claims based on alleged mislabeling are, in essence, misbranding claims which should be decided by the FDA;” similarly, at 788, whether changes on a product label require changing the NDC number or not “are enforcement issues which are committed to the FDA and are better suited for resolution by the FDA.”). Because the FDCA forbids private rights of action under that statute, a private action brought under the Lanham Act may not be pursued when, as here, the claim would require litigation of the alleged underlying FDCA violation in a circumstance where the FDA has not itself concluded that there was such a violation. PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 924 (9th Cir. 2010). The FDA could not possibly have been deceived by any claim of generic equivalence, even if one had been made, because no one could possibly deceive the FDA into mistakenly believing that it had made such a determination about two products when it had not ever evaluated either. In any event, whatever Defendants told the FDA could not qualify as “false advertising” because Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 10 of 15 PageID #:3677 11 it was not “advertising” in the first place. “Advertising is a form of promotion to anonymous recipients.” First Health Group Corp. v. BCE Emergis Corp., 269 F.3d 800, 803 (7th Cir. 2001). “Advertising,” as used in the Lanham Act, is “systematic communicative endeavor to persuade possible customers to buy the seller’s product.” Neuros Co. v. Kturbo, Inc., 698 F.3d 514, 522 (7th Cir. 2012). The FDA is not a consumer, and regulatory filings are not advertisements. D. All Plaintiff’s Claims Were Doomed Because of Lack of Materiality Plaintiff’s sole evidence that anything KMM advertised was material to anyone is the undisputed evidence that Plaintiff’s market share began to decline when a competitive product appeared on the market. But the loss of sales due to increased competition cannot be attributed to false advertising without evidence that the advertising in question was not only false but also material to the purchasing decision. There is no evidence suggesting that the release profile of a wart relief product is material to physicians, who can be expected to be more concerned with the efficacy of a product than with its rate of release. Similarly, there is simply no evidence that consumers ever even saw any advertisement by Defendants before deciding which product to buy, and no evidence that any of the specific items claimed by Plaintiff to be false were material to any consumers. Here again, it is important that Plaintiff specifically alleges that the “extended release” language that offends Plaintiff was never seen by any consumer, even those who had been given the KMM Product by a pharmacist. “The materiality component of a false advertising claim requires a plaintiff to prove that the defendant’s deception is ‘likely to influence the purchasing decision.’” Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave., 284 F.3d 302, 311 (1st Cir. 2002) (quoting Clorox Co. Puerto Rico v. Proctor & Gamble Commerical Co., 228 F.3d 2433, n. 6 (1st Cir. 2000)). Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 11 of 15 PageID #:3678 12 The materiality requirement is based on the premise that not all deceptions affect consumer decisions. In [Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 855 (2d Cir. 1997)], for example, the Second Circuit concluded that Motorola’s advertisement that its SportsTrax device provided sports information “direct from each arena” was literally false, but irrelevant to consumer decisions. Id. Consumers were interested in the fact that statistics were updated quickly, and did not make purchasing decisions based on whether data was collected firsthand or though broadcasts. Id. Johnson & Johnson Vision Care v. 1-800 Contacts, 299 F.3d 1242, 1250 (11th Cir. 2002). It is not remotely plausible that consumers might have been misled by any claims that the KMM Product was “extended release,” because Elorac alleges that consumers never saw any such claim on the label of the KMM Product. If the release profile was material to dispensing pharmacists, they necessarily would have switched to a different product as soon as they saw that the product label did not portray the product as extended release. Thus, either the release profile was not material or it did not cause any deception. IV. KMM’S CLAIM FOR FEES AND EXPENSES In light of the detailed procedure set out in this Court’s Local Rule 54.3 for consultation and negotiation concerning fee claims, for purposes of this motion it should be sufficient at this stage to inform the Court and the Plaintiff that the direct cost to KMM of defending this action was $756,826. 76, as of March 29, 2019, and will increase somewhat as a result of the filing of this motion and the required conferences and consultation arising from it. A spreadsheet showing the amounts of fees and expenses invoiced to KMM is attached as Exhibit A. A more detailed statement of the amounts claimed and justification for them will be provided to Plaintiff pursuant to L.R. 54.3(d). V. CONCLUSION Defendants Rick Henson, KMM Pharmaceuticals, LLC, Stayma Consulting Services, LLC, respectfully move the Court for an Order (a) finding that this case is exceptional and (b) Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 12 of 15 PageID #:3679 13 either awarding KMM its attorneys’ fees and expenses as requested in this motion or directing the parties to comply with this Court’s Local Rule 54.3(b) as a post-filing procedure. DATED: April 15, 2018 Respectfully submitted, s/ Mitchell A. Orpett Attorneys for Defendants Rick Henson, KMM Pharmaceuticals, LLC, and Stayma Consulting Services, LLC Robert G. Brazier (admitted pro hac vice) Steven G. Hall (admitted pro hac vice) Joshua Tropper (admitted pro hac vice) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 3414 Peachtree Road, Suite 1600 Atlanta, GA 30326 404-577-6000 rbrazier@bakerdonelson.com shall@bakerdonelson.com jtropper@bakerdonelson.com Mitchell A. Orpett TRIBLER ORPETT & MEYER P.C. 225 West Washington - Suite 2550 Chicago, IL 60606-2418 312-201-6400 maorpett@TRIBLER.COM Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 13 of 15 PageID #:3680 14 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of Defendants’ Rick Henson, KMM Pharmaceuticals LLC and Stayma Consulting Services LLC’s Motion for Attorneys’ Fees and Expenses pursuant to Fed. R.Civ.P.54. was served upon: Sanjay Satish Karnik Amin Talati Upadhye, LLP 100 S. Wacher Drive, Suite 2000 Chicago, IL 60606 (312)327-3327 sanjay@amintalati.com Attorney for Plaintiff Elorac, Inc. Shane Bradwell Sheri A. Tambourine O’Hagan Meyer LLC One East Wacker Drive, Suite 3400 Chicago, IL 60601 (312)422-6100 sbradwell@ohaganmeyer.com stambourine@ohaganmeyer.com Attorneys for Elorac, Jeffrey Bernstein and Joel Bernstein J. Daniel Harkins (Admitted Pro Hac Vice) Michael P. Adams Sherri Wilson (Admitted Pro Hac Vice) Dykema Gossett PLLC 112 E. Pecan Street, Suite 1800 San Antonio, TX 78205 (210)554-5500 dharkins@dykema.com madams@dykema.com swilson@dykema.com Steven Zeller Dykema Gossett PLLC 10 S. Wacker Drive Suite 2300 Chicago, Illinois 60606 (312) 876-1700 szeller@dykema.com Attorneys for Defendants Mission Pharmacal Company and Biocomp Pharma, Inc. Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 14 of 15 PageID #:3681 15 Robert G. Brazier Joshua Tropper Baker Donelson Bearman Caldwell & Berkowitz, P.C. 3414 Peachtree Road, NE Atlanta, GA 30326 (404) 221-6506 rbrazier@bakerdonelson.com jtropper@bakerdonelson.com Attorneys for Rick Henson, KMM Pharmaceuticals LLC and Stayma Consulting Services, LLC; service was accomplished pursuant to ECF as to Filing Users and complies with LR 5.5 as to any party who is not a Filing User or represented by a Filing User by mailing a copy to the above- named attorney or party of record at the address listed above, from 225 W. Washington Street, Suite 1300, Chicago, IL 60606, prior to 5:00 p.m. on the 15th day of April, 2019 with proper postage prepaid. s/ Mitchell A. Orpett an Attorney Case: 1:16-cv-11522 Document #: 231 Filed: 04/15/19 Page 15 of 15 PageID #:3682
