Biotronik A.G., Appellant,v.Conor Medsystems Ireland, Ltd., et al., Respondents.

Brief

N.Y.January 7, 2014

November 12, 2012 By Overnight Mail Hon. Andrew W. Klein Clerk of the Court Proskauer Rose LLP Eleven Times Square New York, NY 10036--8299 New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Ronald S. Rauchberg d 212.969.3460 f 212.969.2900 rrauchberg@proskauer.com www.proskauer.com Re: Biotronik, A.G. v. Conor Medsystems Ireland, Ltd. et ai., New York County Clerk's Index No. 603751107 Dear Mr. Klein: We represent Plaintiff-Appellant Biotronik, A.G. in the above-entitled case. We respectfully submit this letter pursuant to Rule 500.1 1 (c)(2) in support of Biotronik's appeal from an Order of the Appellate Division, First Department, which affirmed the dismissal of Biotronik's complaint on Defendants-Respondents' motion for summary judgment. Questions Presented 1. When a manufacturer breaches its obligation to supply goods under an exclusive distribution agreement, are the profits the distributor would have made by reselling the goods at a mark-up, as it was expressly obligated to do under the agreement, direct damages the distributor may recover, or instead are those damages barred by a provision in the agreement disallowing the recovery of "any indirect, special, consequential, incidental or punitive damage"? The Appellate Division erred in holding that the distributor's lost-profits damages are barred by the agreement, and the court's error effectively granted the manufacturer the unfettered right to cancel the agreement at will at any time. 2. Is the amount of a damages claim determined at the time of the breach, or instead can a breaching party limit its damages by cancelling the agreement a month after the material breach? The Appellate Division did not decide this question. Beijing I Boca Raton I Boston I Chicago I Hong Kong I London I Los Angeles I New Orleans I New York I Newark I Paris I Sao Paulo I Washington, DC Proskauer» Hon. Andrew W. Klein November 12, 2012 Page 2 Preliminary Statement Biotronik commenced this action against the defendants (collectively, "Conor") to recover damages for Conor's breach of an exclusive distribution agreement (the "Agreement"). l In the Agreement, Conor promised to supply Biotronik with a coronary heart stent called CoStar and appointed Biotronik its exclusive distributor of the stent in a territory consisting of most of the world outside of the United States.2 Conor had sought out Biotronik because of Biotronik's strong direct-sales organizations in many European countries and its network of dealers where it did not operate directly.3 The Agreement specifically obligated Biotronik to purchase certain quantities of CoStar and to resell CoStar to third parties.4 It also set the price that Biotronik would pay Conor for CoStar as a percentage of the amounts that Biotronik received from its required resales, thus building Biotronik's profit margin directly into the Agreement. 5 Biotronik's distribution of CoStar was highly successful and the stent enjoyed wide acceptance by cardiac specialists in Europe and elsewhere in Biotronik's exclusive territory.6 But then Conor breached the Agreement by cutting off Biotronik's supply of CoStar in the midst of the Agreement's term pursuant to a purported "recall."7 Biotronik commenced this action to recover the profits it would have made on the resales of CoStar as contemplated by the Agreement but for Conor's breach. After the completion of discovery, Conor moved for summary judgment, making both liability and damages arguments.8 Its liability arguments were unsuccessful. 9 As to damages, Conor contended that Biotronik's lost-profits claim was barred by a provision in the Agreement that precluded the recovery of "indirect, special, consequential, incidental or punitive damage."lO Although the cases on point, including one by this Court and several in other states, are unanimous in holding that damages like those sought by Biotronik are "direct," and not "consequential," Conor nevertheless was granted summary judgment based on the contractual exclusion of consequential damages. I I On appeal, the Appellate Division affirmed. 12 These rulings were error. Biotronik bargained for and obtained distribution profits as the essence of the deal. Biotronik's loss of these profits was the inevitable consequence of Con or's breach of its supply obligation. These lost profits are general damages flowing directly from Conor's breach, not some "consequential" side effect that would be barred by the Agreement. I R. 146-57. References preceded by "R. " are to the four-volume, consecutively paginated Joint Record submitted in the Appellate Division. References to briefs, unless otherwise noted, are to Biotronik's opening and reply briefs submitted therewith. 2 R. 874; R. 876, at §§ 2.1-2.3, 2.5; R. 899. 3 R. 874. 4 R. 876, at §§ 2.1, 2.5(i); R. 878, at § 3.5; R. 902. 5 R. 900-01. 6 R. 1443-46, at 19:25-22:16; R. 961-62; R. 1428-30, at 93:8-95:23; R. 1334-36. R. 1131; R. 1135; R. 1457, at 12:12-19. 8 R. 167-68. 9 R. 31-43. 10 R. 889-90, at § 14.5. 11 R.44-54. 12 Exh. to Biotronik's Prelim. Appeal Stmt. Proskauer» Hon. Andrew W. Klein November 12, 2012 Page 3 The Order below left Biotronik without any remedy for Conor's breach, as Biotronik suffered no damages other than the lost profits for which it sued. Indeed, the necessary implication of the decisions below is that Conor could decide to stop supplying Biotronik with CoStar at any time, for any reason, and Biotronik would have no recourse. Such an interpretation of the Agreement renders Conor's supply obligation entirely illusory. The Appellate Division's Order is inconsistent with this Court's clear holding in Orester v. Dayton Rubber Mfg. Co., 228 N.Y. 134 (1920), that an exclusive distributor's lost profits on sales to third parties, caused by the manufacturer's breach of its supply obligation, are direct- not consequential--damages. The Order below also violates the principle of Woods v. MONY Legacy Life Ins. Co., 84 N.Y.2d 280,285 (1994), that courts should provide uniformity across the nation when deciding issues, like the one here, under the Uniform Commercial Code (,"UCC"). Cases in other states without exception hold that lost-profits damages like those suffered by Biotronik here are not "consequential" and may be recovered as direct damages. Vias tar Energy, LLC v. Motorola, Inc., No. 01:05-cv-1095-DFH-WTL, 2006 WL 3075864,2006 U.S. Dist. LEXIS 78331 (S.D. Ind. Oct. 26, 2006); Biovail Pharms. v. Eli Lilly & Co., No. 5:01-CV-352-BO(3), 2003 WL 25901513,2003 U.S. Dist. Lexis 27916 (E.D.N.C. Feb. 28, 2003); D.P. Serv., Inc. v. AM Int'l, 508 F. Supp. 162, 167 (N.D. Ill. 1981). Accordingly, the Order below should be reversed and this case remanded for trial. In the alternative, the Court should order full briefing and argument under Rule 500.11(i). The Appellate Division here ruled broadly that profits lost on sales to third parties are always consequential damages, and that lost profits can be direct damages only when they are the result of payments to be made by the other party to the contract. This is a holding of potentially widespread impact, as exclusive sales arrangenlents akin to the one here, and clauses excluding consequential damages, are in common usage. The ruling below appears to introduce uncertainty despite the clear holding in Orester; such uncertainty should be resolved by this Court. We briefly mention two other issues that are fully treated in the briefs to the Appellate Division and will not be further addressed in this letter. First, about a month after Conor stopped the supply of CoStar-that is, a month after its total breach of the Agreement-Conor served Biotronik with a cancellation notice purporting to shorten the term of the Agreement. The trial court held that even if Biotronik could proceed with a claim for direct damages, the claim could be made only as to the shortened term of the Agreement. The court thus erroneously failed to apply the principle that damages are calculated as of the time of the breach. Conor could not limit its liability by its unilateral action a month after its breach. The Appellate Division did not Proskauer:» Hon. Andrew W. Klein November 12, 2012 Page 4 reach this issue. This Court should reverse this ruling below as well, for the reasons set forth in our briefs to the Appellate Division. 13 Second, Conor cross-appealed to the Appellate Division and asked that the ruling below, to the extent it denied Conor's summary judgment motion on liability issues, be reversed. Conor contended that it was entitled to cease supply of the stent because it was a danger to patients. But there was substantial evidence, including most importantly repeated admissions by Conor itself and its corporate parent, Johnson & Johnson, showing that the stent in fact represented no danger to patients. Conor, moreover, after entering into the Agreement, secretly made changes to CoStar that reduced its effectiveness. Conor has never claimed that the stent as it existed at the time the Agreement was made was unsafe; thus, even if its secret changes did render the altered stent unsafe, Conor had no excuse for not supplying Biotronik with the stent as it existed at the time the Agreement was made. The Appellate Division did not reach this issue. Nor has Conor further appealed to this Court. Conor nevertheless may argue that the Order below should be affirmed because dismissal is appropriate on liability issues. Such an argument could be made only by disregarding the substantial evidence of liability in the record below, as we showed in our briefs to the Appellate Division and as the lower court found. 14 The Relevant Provisions of the Agreement The Agreement appointed Biotronik as Conor's exclusive distributor and expressly required that Biotronik make resales of the CoStar stent. 15 The Agreement also specified minimum quantities that Biotronik was required to purchase from Conor. I6 The price Biotronik was to pay for its purchases was a percentage of the amounts that Biotronik received upon its resales. I7 Thus, the Agreement effectively locked in Biotronik's profits on resales. It also, in substance, provided for the creation of a pool of money from Biotronik's resales, which was then shared between Biotronik and Conor in the percentages specified in the Agreement. Argument The Appellate Division's Order should be reversed because it conflicts with controlling Court of Appeals precedent and makes the supply obligation here, and in all the many other similar contracts that no doubt are in force, entirely illusory. It is well settled that courts will avoid an interpretation of a contract that renders a party's obligations illusory. Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88 (1917). Therefore, the provision in the Agreement barring "consequentiar' damages should not be interpreted as barring Biotronik's claim for lost profits; 13 Biotronik Op. Br. 36-37; Biotronik Reply Br. 19-20. 14 Biotronik Reply Br. 20-58; R. 31-43. 15 R. 874; R. 876, at §§ 2.1, 2.5(i). 16 R. 878, at § 3.5. 17 R. 879, at § 5.1; R. 900. Proskauer> Hon. Andrew W. Klein November 12,2012 Page 5 as Judge Cardozo observed, "[w]e are not to suppose that one party was to be placed at the mercy of the other." Id. at 91. 1. The Order Below Conflicts With Court of Appeals Precedent Holding That An Exclusive Distributor's Lost Profits On Sales To Third Parties, Caused By The Manufacturer's Breach Of Its Supply Obligation, Are Direct Damages. As this Court has stated, "[g]eneral damages are those which are the natural and probable consequence of the breach, while special damages are extraordinary in that they do not so directly flow from the breach." American List Corp. v. u.s. News & World Report, Inc., 75 N.Y.2d 38, 42-43 (1989) (citation omitted). As we have already noted, when Biotronik made sales of the CoStar stent, as the Agreement required it to do, a pool of money was created that the Agreement provided would be divided between the parties. That Conor's breach of its supply obligation would directly and naturally lead to Biotronik being unable to create the pool of money is patent from the face of the Agreement. Biotronik's loss of its share of that pool, therefore, yields direct-not consequential--damages. None of the cases cited in the Appellate Division's Order involves the breach by a manufacturer of its supply obligation under a distribution agreement. Thus, none of those cases determines the outcome here. By relying on general statements taken out of context, the Appellate Division failed to address the essence of an exclusive distribution agreement: the decision by a manufacturer not to attempt the marketing of its goods itself; the appointment of a distributor to perform that work; the requirement that the distributor then distribute-i.e., make contracts of resale with third parties; and the distributor's inability to perform when the manufacturer refuses to supply the goods. In this common framework, not addressed by any case cited in the Order, the lost-profits damages when the manufacturer breaches its supply obligation flow naturally and directly from the breach. This Court has previously considered damages from a manufacturer's breach of its supply obligation in an exclusive distribution agreement. In Orester v. Dayton Rubber Mfg. Co., 228 N.Y. 134 (1920), the Court had before it a claim for damages consisting of the profits lost by a tire distributor on sales that it was unable to make to third parties because of the manufacturer's failure to supply the tires. This Court directly held that the lost-profits damages sought were not "consequential." Id. at 138-39. Conor cannot distinguish Orester but would disregard it because it is ''"old'' and pre-dates the UCC. I8 But Orester continues to be good law, and its age establishes only that it is firmly rooted in New York jurisprudence. None of the cases cited by Conor, nor the enactment of the UCC, disturbs Orester's holding. And while Conor would note that Orester did not involve a limitation-of-liability provision, that fact is irrelevant; what is relevant is that this Court was presented with the question of whether the lost profits claimed in that case were direct or 18 Conor App. Div. Opp. to Mot. 2, 5. Proskauer:» Hon. Andrew W. Klein November 12,2012 Page 6 consequential (because the requirements of proof differ), and it held that the lost-profits damages were direct. Moreover, Conor has never offered any evidence, or any reason to believe, that the phrase '"consequential damages" as used in the Agreement was intended by the parties to exclude the kind of damages that were recoverable in Orester. If the phrase could be understood differently from how Orester understood it, at most that would create a jury question as to the meaning of the phrase in the Agreement. See, e.g., Long Island Lighting Co. v. Transam. Delaval, Inc., 646 F. Supp. 1442, 1459 n.30 (S.D.N.Y. 1986) (applying New York law); Am. Elec. Power Co. v. Westinghouse Elec. Corp., 418 F. Supp. 435,460 (S.D.N.Y. 1976) (applying New York law); accord Niagara Mohawk Power Corp. v. Stone & Webster Eng 'g Corp., No. 88- CV-819, 1992 WL 121726,1992 U.S. Dist. LEXIS 7721 (N.D.N.Y. May 23,1992). In no event should Biotronik's claim have been dismissed as a matter of law. Contrary to Conor's argument below, this Court did not overrule Orester, or say or hold anything to undermine it, in American List. There, the defendant magazine agreed to rent, over a 1 O-year period, mailing lists to be compiled by the plaintiff. The magazine repudiated the contract and the trial court awarded the plaintiff the present value of balance due on the contract for the remainder of the 10-year term. This Court upheld the damages award, holding that the plaintiff recovered, as general damages, "moneys which defendant undertook to pay under the contract." 75 N.Y.2d at 43. American List, not dealing with a distribution agreement, not decided under the UCC, and not rejecting the recovery of any damages at all, does nothing to help Conor or to undermine Orester. Moreover, the general standard set forth in American List, quoted above, if anything requires reversal of the Order below. Nor is the holding in Orester disturbed by Compania Embotelladora Del Pacifico, S.A. v. Pepsi Cola Co., 650 F. Supp. 2d 314 (S.D.N.Y. 2009), cited in the Appellate Division's Order. Pepsi, in all events a federal decision, is inapposite because it did not involve a breach of the supply obligation in a distribution agreement. Rather, there the defendant's alleged breach was its failure to take affirmative steps to prevent others from selling competing products within the plaintiff s territory, even though the parties' agreement contained no such express requirement. Id. at 323. The federal court dismissed the complaint on numerous grounds, one of which was that the plaintiff s claim for lost profits was barred because the damages were consequential. Id. at 322. Since the only alleged breach in Pepsi was of an alleged collateral (and, indeed, unstated) obligation to prevent sales by third parties within the plaintiff s territory, the case presents facts not analogous to those at issue here. Finally, nothing about the enactment of the UCC affects Orester's holding. As set forth below, cases deciding the question presented here under the UCC have applied the same rule from Orester. Orester therefore remains consistent with UCC principles and should be applied here. Proskauer:» Hon. Andrew W. Klein November 12, 2012 Page 7 2. The Order Below Conflicts With Court of Appeals Precedent Holding That Courts Should Provide Uniformity And Consistency Across The Nation When Deciding Issues Under the U CC The Appellate Division's Order does not follow Court of Appeals precedent requiring New York courts to aim at consistency with rulings in other jurisdictions on matters ofUCC interpretation. The contract here at issue is, of course, a sales contract and, thus, within the sales article of the UCC. Section 2-715 of that article describes "consequential damages" and the Appellate Division cited that section, thus recognizing the pertinence here of the UCC. The UCC in § 1- 102(2)(c) provides that one of its goals is "to make uniform the law among the various jurisdictions." This Court has recognized the importance of nationwide uniformity, as under the statute it must, and has therefore held that UCC decisions in other states "may be entitled to considerable weight." Woods v. MONY Legacy Life Ins. Co., 84 N.Y.2d 280,285 (1994) (internal quotation marks omitted). State and federal cases in other jurisdictions have considered the precise damages issue presented here. Without exception, they have held that under the UCC, the distributor's lost- profits damages when the manufacturer breaches its supply obligation constitute direct damages. Viastar Energy, LLCv. Motorola, Inc., No. 01:05-cv-1095-DFH-WTL, 2006 WL 3075864, 2006 U.S. Dist. LEXIS 78331 (S.D. Ind. Oct. 26, 2006); Biovail Pharms. v. Eli Lilly & Co., No. 5:01- CV-352-BO(3), 2003 WL 25901513,2003 U.S. Dist. LEXIS 27916 (E.D.N.C. Feb. 28, 2003); D.P. Serv., Inc. v. AM Int'l, 508 F. Supp. 162, 167 (N.D. Ill. 1981). In Biovail, for example, the plaintiff was an exclusive distributor of a drug that the defendant manufacturer recalled from the market and discontinued manufacturing. Plaintiff sued for lost profits on its future sales of the drug, and defendant moved for summary judgment to dismiss the claim, arguing that the lost profits were unrecoverable under a contractual provision barring "consequential" damages. The court denied the motion. It recognized that there are cases holding lost profits to be consequential damages, but, echoing the language of Judge Cardozo in Kerr S.S Co. v. Radio Corp. of Am., 245 N.Y. 284 (1927), the court said that "it is well established that damages that are consequential in one case might be direct in another." Biovail Pharms., 2003 WL 25901513, at *2. The court then reviewed the common law and UCC decisions in several different states and concluded that whether a given damages claim was direct or consequential depends ultimately on how probable it is that the damages will result from a breach. As to the exclusive distribution agreement before it, the court held, "given the nature of the contract, lost profits were not only highly probable, but an inevitable consequence of the breach where [seller] no longer supplies [product] to [distributor] to re-sell on the market." Id. at *3. The lost profits here were no less the inevitable consequence of the manufacturer's failure to perform its supply obligation. The Appellate Division's Order nonetheless disregards Biovail and the substantial like authority in other jurisdictions. The Order makes no mention of Proskauer:» Hon. Andrew W. Klein November 12, 2012 Page 8 that authority, and its holding creates an inconsistency under VCC § 2-715 where before there was none. The Appellate Division's departure from the Court of Appeals' requirement in the Woods decision provides additional grounds for reversal here. Conor's position is that Biovail and the other cases cited above simply are incorrect. According to Conor, all of the courts in other jurisdictions misunderstood VCC § 2-715(2)(a), which, Conor asserts, "says that a buyer's lost profits from the resale of a product are always consequential.,,19 That VCC provision says no such thing; instead, it defines consequential damages to include "any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know." V.C.C. § 2-715(2)(a). Biotronik's damages claim, however, does not depend on any proof of any particular Biotronik "needs" of which Conor "had reason to know." Rather, it arises directly out of the express provisions in the Agreement concerning the sharing of the sales proceeds. Conor's attempt to show that the only relevant VCC cases cited by any party are wrong rests upon a plain distortion of the UCC. The Viastar, Biovail, and D.P. Servo cases, cited above, disprove the fiction that UCC § 2-715 creates any rule that a distributor's lost profits on resales always constitute consequential damages, and instead show that a distributor's lost profits on resales easily fit within the ambit of direct damages. These cases should have been followed here. The two out-of-state cases cited by Conor below do nothing to disturb Orester's holding.2o In Airlink Commc 'ns, Inc. v. Owl Wireless, LLC, No. 3:10 CV 2296,2011 WL 4376123, 2011 U.S. Dist. LEXIS 106673 (N.D. Ohio Sept. 20, 2011), the court addressed the plaintiff s claim that the defendant breached the parties' agreement by misrepresenting its pricing to drive the plaintiff out of the market. Nothing about the court's resolution of such a claim is pertinent to this case. And in Mood v. Kronos Prods., Inc., 245 S.W.3d 8 (Tex. App. 2007), the court confirmed the rule in Orester by recognizing that the profits a distributor lost by not being able to resell the goods subject to the distribution agreement were direct damages. Id. at 13. Conor's reliance on Mood for the opposite conclusion is puzzling to say the least. To the extent these cases, like the ones decided under New York law, recognize that lost profits on collateral business arrangements are consequential damages, that is utterly beside the point here. Biotronik's obligation to enter into third-party contracts and resell the goods was at the center of the parties' express Agreement and, thus, not "collateral" in any sense. None of the out-of-state cases cited by Conor hold that lost-profits damages like those sought by Biotronik are consequential, and all of the out-of-state cases cited by Biotronik hold that such damages are direct. VCC cases are unanimous in holding that a distributor's lost profits on resale when a manufacturer breaches its supply obligation are direct damages. The Order's conclusion that Biotronik's damages are not direct is thus erroneous and creates a nationwide inconsistency in the interpretation of the UCC that did not exist previously. 19 Conor App. Div. Opp. to Mot. 7-8 (emphasis added) 20 Conor App. Div. Opp. to Mot. 8. Proskauer> Hon. Andrew W. Klein November 12,2012 Page 9 3. This Court Should Settle The Questions In This Case Because They Are Of Widespread Interest And Importance Given the frequency of exclusive distribution arrangements in a variety of different industries, the damages ruling in this case is of statewide, and indeed nationwide, importance. If the Order is correct, then Conor was free at any time to choose to stop meeting its supply obligation and announce that Biotronik could do nothing about it since the only resulting damages were consequential. The ruling makes Conor's supply obligation entirely illusory, and violates the basic principle that "courts avoid an interpretation that renders a contract illusory." Curtis Props. Corp. v. Greif Cos., 212 A.D. 2d 259,265-66 (1st Dep't 1995). The widespread implications of the ruling thus extend not only to damages issues but also to the very enforceability of supply obligations of unique goods when they are coupled with exclusions of consequential damages. The Appellate Division's ruling means that every manufacturer under these agreements is entitled unilaterally and arbitrarily at any time to cease supplying goods, thus bringing the agreement to a halt in the middle of its agreed term. If the resulting damages are not recoverable, the seller has no remedy for any refusal by the manufacturer to supply goods. Conor tried to obscure this point below by arguing that it honored its financial obligation under the Agreement to pay Biotronik' s expenses relating to the alleged recall of Biotronik' s existing inventory. But this case has nothing to do with the expenses of recall; the recall of inventories in the field and the cessation of supply for future distribution are two different things. Cessation of supply can occur whether or not any inventories are recalled. And here, Conor's overly broad definition of "consequential damages" would permit it to repudiate its supply obligation while allowing Biotronik to sell off its existing inventory, and avoid paying any damages at all. It is a basic principle of contract interpretation that the provisions of a contract should not be understood as meaningless, and Conor has no answer to the point that its reading of the consequential-damages clause would render its express obligation to provide product in the future unenforceable and therefore meaningless. The Appellate Division's Order is of widespread public importance because it potentially renders meaningless the supply obligations in innumerable distribution agreements. Proskauer:» Hon. Andrew W. Klein November 12,2012 Page 10 Conclusion For the foregoing reasons, and those stated in Biotronik's briefs to the Appellate Division below, Biotronik respectfully requests that this Court reverse the Appellate Division's Order and remand for trial without any limit on Biotronik's damages from Conor's purported post-breach cancellation notice or, in the alternative, that it direct full briefing and oral argument. Respectfully submitted, Ronald S. Rauchberg cc: Harold P. Weinberger, Esq. Attorney for Respondents COURT OF APPEALS STATE OF NEW YORK -----------------------------------x BIOTRONIK, A.G., Appellant, -against- CONOR MEDSYSTEMS IRELAND, LTD., CONOR MEDSYSTEMS IRELAND LIMITED, CONOR MEDSYSTEMS, INC., CONOR MEDSYSTEMS, INC., as successor by merger of: CONOR MEDSYSTEMS, INC., and CONOR MEDSYSTEMS LLC, Respondents. -----------------------------------x DISCLOSURE STATEMENT PURSUANT TO RULE 500.1(f) Pursuant to Court of Appeals Rule of Practice 500.1(f), the undersigned counsel of record, on behalf of the named Appellant, certifies that Biotronik, A. G. is a subsidiary of MS Holding II SE, and has the following subsidiaries: Cortronik I, Cortronik II, and Biotronik CRC. The following entities are affiliates ofBiotronik, A.G.: Biotronik, Inc., Worldwide Biotronik Group, Biomedica Argentina, S.A., Biotronik Australia Pty. Ltd., Biotronik Vertriebs-GmbH, Aamal Medical Co., Biotronik Belgium, S.A., Biotronik Commercial Medica Ltda., Biotronik Bulgaria Ltd., Biotronik Canada, Inc., Arlab Ltda., Biotronik (Beijing) Medical Devices Ltd., World Medical S.A.S., Cardiotronik S.A.S., Corporaci6n Biomur, S.A., Biotronik d.o.o., Comefin, Ralf Med International BV, Medsoll Holdings Ltd., Biotronik Praha Spol. s.r.o., Biotronik ApS, CentralMed, S.A., Insumedical S.A.-T, Technowave S.A.E, Plusmed OU, Biotronik OY, Biotronik France S.A.S., Biotronik Vertriebs GmbH & Co. KG, Biotronik SE & Co. KG, Intertronics Hellas, Semicom, S.A., Biotronik Hong Kong Limited, Biotronik Hungana Kft, Biotronik Medical Devices India Private Ltd., Biotronik Singapore-Asia Pacific Pte Ltd., Matana Company of Medical Equipments & Trading, Medlab Ltd., Biotronik Italia S.p.A., Biotronik Japan, Inc., Rawhi Drug Store, Ashcott Ltd., Ali Abdulwahab, Sons & Co., Universal Technology & Medical, Biotronik Baltija SIA, GreenMed Co. s.a.r.l., UAB FGT, Promedika, V.J. Salomone Pharma Ltd., Ducray Lenoir Ltd., Impulso Mexicano S.A. de C.V., Biotronik Nederland b.v., Coranica, Octopus Medical AB, Technomedical International Ltd., Biotronik Latin America, Calypso, Biomedist-Biomedical Distributors S.A.C., Edge Medical Devices and Services, Inc., Biotronik Polska Sp. Z.O.o, Farmimpex Cardio Equipamentos Medico Cin.'irgicos, Ltda., Meddev Technologies, Inc., Solution for Services and Health Care W.L.L., SC Medical Devices & Diagnostics S.R.L., Eximrom Biocard S.R.L., 000 "'Biotronik," 000 "Biotronik Ural," Al Faisaliah Medical Systems, Biotronik d.o.o., Biotronik Slovensko Spol. s.r.o., Biotronik SA (Pty) Ltd., Vasocare Co., Ltd., Biotronik Korea Co., Ltd., IMT Medical Co., Ltd., C.E.M. Biotronik S.A., Biotronik Sri Lanka, Biotronik Schweiz, A.G., New Biomedical Center, Union-Link Corporation, Biotronik Biyomedikal Teknolojiler Ltd. Sti., MPC-Modem Pharmaceutical Company, ArabianEthicals, Biotronik UK Ltd., Lentix S.A., Hospal Medica, Systolic Medical Products Import Export Limited, Raydan Medical Co. Ltd., and Likar Ltd. Dated: November 12,2012 New York, NY 2 Respectfully submitted, PROSKAUER ROSE LLP Anna G. Kaminska 11 Times Square New York, NY 10036 (212) 969-3000 Bertrand C. SeIHer VANDENBERG & FELIU LLP 60 East 42nd Street, 51 st Floor New York, NY 10165 (212) 763-6833 Attorneys for Appellant