Iconlab Inc. et al v. Valeant Pharmaceuticals International, Inc. et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.March 8, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KES Douglas W. Robinson (SBN: 255909) dwrobinson@shb.com Tony M. Diab (SBN: 277343) tdiab@shb.com Mayela C. Montenegro (SBN: 304471) mmontenegro@shb.com SHOOK, HARDY & BACON L.L.P. Jamboree Center 5 Park Plaza, Suite 1600 Irvine, California 92614 Telephone: 949-475-1500 Facsimile: 949-475-0016 Gary Miller (Pro Hac Vice) gmiller@shb.com SHOOK, HARDY & BACON L.L.P. 111 S. Wacker Drive, Suite 5100 Chicago, Illinois 60606 Telephone: 312-704-7700 Facsimile: 312-558-1195 Attorneys for Defendants Valeant Pharmaceuticals International, Inc., Valeant Holdings Ireland, Bausch & Lomb Incorporated, and Bausch & Lomb Saglik ve Optik Urunleri Tic. A.S. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION ICONLAB INC., a California corporation, ICON LAB GmbH, a German corporation, REPER-NN, CO. LTD, a Russian corporation, Plaintiffs, v. VALEANT PHARMACEUTICALS INTERNATIONAL, INC., a Delaware corporation; VALEANT HOLDINGS IRELAND, an Irish corporation; BAUSCH & LOMB INCORPORATED, a New York corporation; BAUSCH & LOMG SAGLIK ve OPTIK URUNLERI TIC. A.S., a Turkish corporation; ANADOLU TIP TEKNOLOJILERI URETIM PAZARLAMA ITHALAT IHRACAT TICARET ve SANAYI ANONIM SIRKETI, a Turkish corporation, AND DOES 1-20, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 8:16-cv-01321-JLS-KES DEFENDANTS VALEANT PHARMACEUTICALS INTERNATIONAL, INC., VALEANT HOLDINGS IRELAND, BAUSCH & LOMB INCORPORATED, AND BAUSCH & LOMB SAGLIK VE OPTIK URUNLERI TIC A.S.’S NOTICE OF RENEWED MOTION AND RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with Declaration of Tony M. Diab and [Proposed] Order] Date: April 21, 2017 Time: 2:30 p.m. Ctrm: 10A Judge: Hon. Josephine L. Staton 379786 Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 1 of 35 Page ID #:537 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE NOTICE OF MOTION AND MOTION TO DISMISS PLEASE TAKE NOTICE that on April 21, 2017, at 2:30 p.m., or as soon thereafter as the matter may be heard, in Courtroom 10A before the Honorable Josephine L. Staton, in the United States Courthouse, 411 West Fourth Street, Santa Ana, California 92701, Defendants Valeant Pharmaceuticals International, Inc. (“Valeant”), Valeant Holdings Ireland (“Valeant Holdings”), Bausch & Lomb Incorporated (“Bausch & Lomb”), and Bausch & Lomb Saglik ve Optik Urunleri Tic A.S. (“Bausch & Lomb Saglik”) (collectively, “Valeant Defendants”) will move the Court for an order dismissing with prejudice Plaintiffs IconLab, Inc. (“IconLab”), Icon Lab GmbH (“Icon Lab”), and Reper-NN, Co. Ltd.’s (“Reper-NN”) (collectively, “Plaintiffs”) First Amended Complaint (ECF No. 47) and each claim alleged therein. This renewed motion is made pursuant to Federal Rule of Civil Procedure 12(b)(2) on the grounds that this Court has no personal jurisdiction over Valeant Holdings and Bausch & Lomb Saglik; and pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that certain causes of action fail to state a claim upon which relief can be granted as to all Valeant Defendants. This renewed motion is made following the conference of counsel pursuant to Local Rule 7-3 that took place on February 28, 2017. Dated: March 8, 2017 Respectfully submitted, SHOOK, HARDY & BACON L.L.P. By: Douglas W. Robinson Gary Miller Tony M. Diab Mayela C. Montenegro Attorneys for Defendants Valeant Pharmaceuticals International, Inc., Valeant Holdings Ireland, Bausch & Lomb Incorporated, and Bausch & Lomb Saglik ve Optik Urunleri Tic. A.S. /s/ Tony M. Diab Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 2 of 35 Page ID #:538 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE TABLE OF CONTENTS I. INTRODUCTION .................................................................................................... 1 II. BACKGROUND ...................................................................................................... 1 III. LEGAL STANDARD ............................................................................................... 3 A. Federal Rule of Civil Procedure 12(b)(2) ......................................................3 B. Federal Rule of Civil Procedure 12(b)(6) ......................................................4 IV. THIS COURT LACKS PERSONAL JURISDICTION OVER THE FOREIGN VALEANT DEFENDANTS. ................................................................. 5 A. No General Jurisdiction Exists. .....................................................................5 B. No Specific Jurisdiction Exists. .....................................................................6 V. PLAINTIFFS’ CLAIMS BASED ON AN ALLEGED BAILMENT CONTRACT FAIL BECAUSE THERE WAS NO VALID CONTRACT AND NO BREACH. ................................................................................................. 9 A. Plaintiffs’ Claim for Breach of Contract Fails ...............................................9 B. Plaintiffs’ Claim for Tortious Breach of Implied Covenant of Good Faith and Fair Dealing Fails ........................................................................................10 C. Plaintiffs’ Claim for Breach of Fiduciary Duty Fails ..................................11 VI. PLAINTIFFS FAIL TO STATE A CLAIM OF MISAPPROPRIATION OF TRADE SECRETS. .......................................................................................... 13 A. Trade Secret Misappropriated Under California Law .................................13 B. Trade Secret Misappropriated Under Federal Law ....................................15 VII. PLAINTIFFS’ FRAUD-BASED CLAIMS FAIL BECAUSE THEY FAIL TO PLEAD WITH THE REQUIRED SPECIFICITY. .......................................... 15 A. Fraud and Deceit ..........................................................................................16 B. Constructive Fraud .......................................................................................17 VIII. PLAINTIFFS’ UCL CLAIM FAILS BECAUSE IT IS INSUFFICIENTLY PLED. ...................................................................................................................... 18 A. The Allegations of Unlawful Practice are Insufficient ...............................18 B. The Allegations of Unfair Practice Are Insufficient ...................................20 C. The Allegations of Fraudulent Conduct Are Insufficient ............................21 Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 3 of 35 Page ID #:539 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE D. Plaintiffs Cannot Recover Damages ...........................................................22 E. California Does Not Permit Extraterritorial Application of the UCL .........22 IX. PLAINTIFFS FAIL TO STATE SUFFICIENT FACTS SHOWING ENTITLEMENT TO RELIEF. ............................................................................... 23 A. Conversion ...................................................................................................23 B. Unjust Enrichment .......................................................................................23 C. Interference with Contractual Relationship .................................................23 D. Inducing Breach of Contract ........................................................................24 X. CONCLUSION ....................................................................................................... 25 Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 4 of 35 Page ID #:540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE TABLE OF AUTHORITIES Page(s) CASES Crescent Wood Working Co., Ltd. v. Accent Furniture, Inc., No. EDCV 04-1318 RT (PJWx), 2005 WL 5918848 (C.D. Cal. Aug. 10, 2005) .............. 26 Arce v. Kaiser Found. Health Plan, Inc., 181 Cal. App. 4th 471 (2010) ....................................................................................... 20 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................................................... 4 Avago Techs. U.S. Inc. v. Nanoprecision Prod., Inc., No. 16-CV-03737-JCS, 2017 WL 412524 (N.D. Cal. Jan. 31, 2017) ......................... 16 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ....................................................................................................... 4 Bitton v. Gencor Nutrientes, Inc., 654 F. App’x 358 (9th Cir. 2016) ................................................................................. 21 Britton v. Girardi, 235 Cal. App. 4th 721 (2015) ....................................................................................... 12 Calder v. Jones, 465 U.S. 783 (1984) ....................................................................................................... 8 Cirino v. GMAC Mortg. LLC, No. 12-56038, --- F. App’x ---, 2016 WL 3435606 (9th Cir. June 22, 2016) .............. 20 Dallas & Lashmi, Inc. v. 7-Eleven, Inc., 112 F. Supp. 3d 1048 (C.D. Cal. 2015) .................................................................. 11, 12 Dealertrack, Inc. v. Huber, 460 F. Supp. 2d 1177 (C.D. Cal. 2006) .................................................................. 17, 18 Gallagher v. Holt, 436 F. App’x 754 (9th Cir. 2011) ................................................................................. 10 Greenwich Ins. Co. v. Rodgers, 729 F. Supp. 2d 1158 (C.D. Cal. 2010) .......................................................................... 9 Hall v. Club Corp. of Am., 33 F. App’x 873 (9th Cir. 2002) ..................................................................................... 6 Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 5 of 35 Page ID #:541 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vi DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE HiRel Connectors, Inc. v. Dep’t of Defense of U.S., No. CV 01-11069 DT, 2003 WL 27168678 (C.D. Cal. Apr. 14, 2003)................. 14, 15 In re ConAgra Foods Inc., 908 F. Supp. 2d 1090 (C.D. Cal. 2012) ........................................................................ 25 In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541 (9th Cir. 1994) .......................................................................................... 4 In re WellPoint, Inc. Out-of-Network UCR Rates Litig., 903 F. Supp. 2d 880 (C.D. Cal. 2012) .......................................................................... 23 Jun-En Enter. V. Lin, No. CV 12-2734 PSG, 2013 WL 12126115 (C.D. Cal. June 17, 2013) ...................... 14 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) ...................................................................................... 16 Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984) ....................................................................................................... 6 Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397 (9th Cir. 1991) ........................................................................................ 16 Lepton Labs, LLC v. Walker, 55 F. Supp. 3d 1230 (C.D. Cal. 2014) .......................................................................... 14 Machuca v. Los Angeles World Airports, No. CV 14-09852 SJO RZX, 2015 WL 276922 (C.D. Cal. Jan. 21, 2015) ................. 20 Marzec v. Cal. Pub. Employees Ret. Sys., 236 Cal. App. 4th 889 (2015) ....................................................................................... 12 Mattel, Inc. v. MGA Entm’t, Inc., 782 F. Supp. 2d 911 (C.D. Cal. 2011) .......................................................................... 21 Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218 (9th Cir. 2011) ........................................................................................ 5 McKell v. Washington Mut., Inc., 142 Cal. App. 4th 1457 (2006) ..................................................................................... 10 McVicar v. Goodman Glob., Inc., 1 F. Supp. 3d 1044 (C.D. Cal. 2014) ................................................................ 19, 20, 22 Metal Lite, Inc. v. Brady Const. Innovations, Inc., 558 F. Supp. 2d 1084 (C.D. Cal. 2007) ........................................................................ 26 Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 6 of 35 Page ID #:542 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vii DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE MGA Entm’t, Inc. v. Innovation First, Inc., 525 F. App’x 576 (9th Cir. 2013) ................................................................................... 6 Milne Emps. Ass’n v. Sun Carriers, 960 F.2d 1401 (9th Cir. 1991) ...................................................................................... 11 Morning Star Packing Co. v. S.K. Foods, L.P., No. 2:09-cv-00208-KJM, 2015 WL 3797774 (E.D. Cal. June 18, 2015) .................... 21 Morton v. Rank Am., Inc., 812 F. Supp. 1062 (C.D. Cal. 1993) ....................................................................... 15, 16 MTC Elec. Techs. Co., Ltd. v. Leung, 889 F. Supp. 396 (C.D. Cal. 1995) ............................................................................... 24 Needelman v. DeWolf Realty Co., 239 Cal. App. 4th 750 (2015) ................................................................................. 10, 11 Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101 (C.D. Cal. 2003) ........................................................................ 12 Petro-Diamond Inc. v. SCB & Assocs., LLC, 122 F. Supp. 3d 949 (C.D. Cal. 2015) .................................................................... 12, 13 Picot v. Weston, 780 F.3d 1206 (9th Cir. 2015) ................................................................................ 5, 7, 8 Smith v. State Farm Mut. Auto Ins. Co., 93 Cal. App. 4th 700 (2001) ......................................................................................... 20 Sullivan v. Oracle Corp., 51 Cal. 4th 1191 (2011) .......................................................................................... 23, 24 Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) ...................................................................................... 5, 8 UMG Recordings, Inc. v. Glob. Eagle Entm’t, Inc., 117 F. Supp. 3d 1092 (C.D. Cal. 2015) ........................................................................ 25 United Safeguard Distribs. Ass’n, Inc. v. Safeguard Bus. Sys., Inc., 145 F. Supp. 3d 932 (C.D. Cal. 2015) ............................................................................ 4 Valero v. Bac Home Loans Servicing, LP, No. 13-16163, 2016 WL 3450204 (9th Cir. June 23, 2016) ........................................ 20 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) .................................................................................. 5, 17 Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 7 of 35 Page ID #:543 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 viii DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE Warner v. Tinder Inc., 105 F. Supp. 3d 1083 (C.D. Cal. 2015) .................................................................. 23, 24 Wilmington Trust, N.A. v. Mobley, No. CV15-2910 CAS AJWX, 2015 WL 3649578, (C.D. Cal. June 10, 2015) ............................................................................................ 21 STATUTES 18 U.S.C. § 1341 .......................................................................................................... 20, 21 18 U.S.C. § 1343 .......................................................................................................... 20, 21 18 U.S.C. § 1836 ................................................................................................................ 16 18 U.S.C. § 1839 ................................................................................................................ 16 18 U.S.C. § 1952. ......................................................................................................... 20, 21 Cal. Bus. & Prof. Code § 17200 .................................................................................... 3, 19 Cal. Civ. Code § 1550 ........................................................................................................ 10 Cal. Civ. Code § 3426.1 ............................................................................................... 13, 14 Cal. Penal Code § 641.3 ..................................................................................................... 21 Defend Trade Secrets Act, 18 U.S.C. § 1836 .................................................................... 13 Defend Trade Secrets Act of 2016, PL 114-153, May 11, 2016, 130 Stat. 376 ................ 16 Federal Rule of Civil Procedure 9 ............................................................... 4, 16, 18, 21, 23 Federal Rule of Civil Procedure 12 ................................................................................. 3, 4 Title 18 of the United States Code ............................................................................... 20, 21 Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 8 of 35 Page ID #:544 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KES MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiffs IconLab Inc. (“IconLab”), Icon Lab GmbH (“Icon Lab”), and Reper-NN, Co. Ltd. (“Reper-NN”) (collectively, “Plaintiffs”) contend Anadolu Tip Teknolojileri Uretim Pazarlama Ithalat Ihracat Ticaret ve Sanayi Anonim Sirketi (“Anadolu Tip”) violated its agreement not to disclose certain technology developed by Reper-NN without prior authorization when it entered into various agreements that allegedly disclosed such technology. Rather than file suit against Anadolu Tip alone, however, Plaintiffs have asserted a laundry list of claims against Defendants Valeant Pharmaceuticals International, Inc. (“Valeant”), Valeant Holdings Ireland (“Valeant Holdings”), Bausch & Lomb Incorporated (“Bausch & Lomb”), and Bausch & Lomb Saglik ve Optik Urunleri Tic. A.S. (“Bausch & Lomb Saglik”) (collectively, “Valeant Defendants”) in addition to Anadolu Tip. Plaintiffs’ theory against the Valeant Defendants is that they should have known better than to enter into the agreements they did with Anadolu Tip. Plaintiffs’ First Amended Complaint ((“FAC”), ECF No. 47) should be dismissed. First, this Court lacks personal jurisdiction over Valeant Holdings and Bausch & Lomb Saglik, which are entities based in Ireland and Turkey, respectively. Second, the claims asserted against all Valeant Defendants fail to state a claim upon which relief can be granted. II. BACKGROUND A. Factual Allegations Plaintiffs purportedly bring this action against defendants “for the wrongful transfer, misappropriation and unlawful use of Plaintiffs’ proprietary technology, know-how, equipment, patents, and other intellectual property rights.” (FAC at ¶ 1.) The technology at issue concerns hydrophobic polymer intraocular lenses, which are used primarily after cataract surgery (the “subject technology”). (Id.) In 2003, defendant Anadolu Tip entered into an agreement with plaintiff Reper-NN (the “Anadolu Tip-Reper 2003 Technology Agreement”). (Id. at ¶ 21; Ex. A.) Plaintiffs allege that Anadolu Tip agreed to purchase and/or license the subject technology from Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 9 of 35 Page ID #:545 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE Reper-NN, and would be prohibited from transferring the rights to the subject technology to third parties without Reper-NN’s consent. (Id.) In 2007, Anadolu Tip entered into an agreement with plaintiff Icon Lab (the “Anadolu Tip-Icon Lab 2007 Share Purchase Agreement”). (Id. at ¶ 25; Ex. B). Under this agreement, Icon Lab would purchase 25% of the shares of Anadolu Tip, and in consideration, Anadolu Tip allegedly agreed not to sell or transfer the rights to the subject technology without Icon Lab’s consent. (Id.) In May 2007, Anadolu Tip entered into another agreement with Icon Lab (the “Anadolu Tip-Icon 2007 Cooperation Framework Agreement”) (id. at ¶ 26; Ex. C), which further defined Anadolu Tip’s restrictions for the use and transfer of the subject technology to third parties. (Id.) Furthermore, Plaintiffs allege that in March 2011, Dr. Boris Malyugin, a Russian ophthalmologist who is a member of Reper-NN’s advisory board and consultant to Reper- NN, shared information with Bausch & Lomb officials about a project involving new multifocal hydrophobic lenses. (Id. at ¶¶ 27-29.) Plaintiff alleges that after a meeting with Bausch & Lomb’s Executive Director for Research and Development, Griffith Altmann, Dr. Malyugin provided Bausch & Lomb with two Reper-NN Multifocal Gradient Index of Refraction (“GRIN”) lenses for testing. (Id. at ¶¶ 30-33.) In October 2011, Bausch & Lomb allegedly sent Dr. Malyugin a report on the testing of the GRIN lenses; and two years later, Dr. Malyugin met again with Mr. Altmann and another Bausch & Lomb key official, Joel Pinson. (Id. at ¶¶ 34-35.) Plaintiffs allege that in October 2013, Mr. Altmann sent Dr. Malyugin an email stating that Bausch & Lomb “decided to pass on the gradient-index IOL.” (Id. at ¶ 36.) In March 2014, Plaintiffs allege that Valeant wrote Anadolu Tip expressing interest in purchasing Anadolu Tip assets. (Id. at ¶ 37.) According to Plaintiffs, Valeant became aware of the three agreements entered into by Anadolu Tip, and in October 2014, Valeant acquired certain assets of Anadolu Tip that included the subject technology. (Id. at ¶¶ 39, 41.) Plaintiffs contend that in acquiring the subject technology, Reper-NN’s and Icon Lab’s consent to transfer the subject technology was never sought. (Id. at ¶ 44.) Plaintiffs further Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 10 of 35 Page ID #:546 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE contend that in 2014, Valeant and Anadolu Tip entered into an additional agreement whereby Anadolu Tip sold and transferred to Valeant the rights to the subject technology. (Id. at ¶ 47.) B. Procedural History In August 2016, the Valeant Defendants filed a motion to dismiss Plaintiffs’ complaint, which was fully briefed by the parties. (ECF Nos. 25, 27, 33, 34.) On October 25, 2016, this Court issued an order granting Plaintiffs’ request for jurisdictional discovery, and denied as moot, without prejudice, Defendants’ motions to dismiss. (ECF No. 36.) This Court also granted leave to amend the complaint. (Id.) On February 15, 2017, after the completion of jurisdictional discovery, Plaintiffs filed the operative First Amended Complaint. (ECF No. 47.) In its amended complaint, Plaintiffs assert 15 causes of action against the Valeant Defendants, including breach of contract, tortious breach of implied covenant of good faith and fair dealing, breach of fiduciary duty, conversion, unjust enrichment, violation of the Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200, et seq.) (“UCL”), intentional and negligent interference with contractual relationship, inducing breach of contract, misappropriation of trade secrets, and fraud. III. LEGAL STANDARD A. Federal Rule of Civil Procedure 12(b)(2) “When there is no applicable federal statute governing jurisdiction, the exercise of personal jurisdiction over a nonresident defendant requires two findings: 1) the forum state’s laws provide a basis for exercising personal jurisdiction, and 2) the assertion of personal jurisdiction comports with due process.” United Safeguard Distribs. Ass’n, Inc. v. Safeguard Bus. Sys., Inc., 145 F. Supp. 3d 932, 941 (C.D. Cal. 2015). “California’s long-arm statute extends jurisdiction to the limits of due process,” and “[d]ue process requires that a defendant have certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Id. (internal Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 11 of 35 Page ID #:547 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE quotations and citations omitted). “The defendant’s contacts must be such that the defendant should reasonably anticipate being haled into court in the forum.” Id. (internal quotations omitted). The plaintiff bears the burden of establishing the court’s personal jurisdiction over the defendants. Id. B. Federal Rule of Civil Procedure 12(b)(6) “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). The plausibility standard is satisfied “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The factual allegations, however, “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Claims sounding in fraud or mistake are subject to the heightened pleading standard of Federal Rule of Civil Procedure 9(b), which requires that such claims “state with particularity the circumstances constituting fraud or mistake.” To satisfy this standard, a plaintiff must identify “the time, place, and content of [the] alleged misrepresentation[s],” as well as the “circumstances indicating falseness” or “manner in which the representations at issue were false and misleading.” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1547-48 (9th Cir. 1994) (internal quotation marks and modifications omitted) (superseded on other grounds). The allegations “must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007). Averments of fraud “must be accompanied by the who, what, when, where, and how of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal quotations omitted). Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 12 of 35 Page ID #:548 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE IV. THIS COURT LACKS PERSONAL JURISDICTION OVER THE FOREIGN VALEANT DEFENDANTS. Personal jurisdiction has two forms: general and specific. Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015). In this instance, the Court lacks both over Valeant Ireland and Bausch & Lomb Saglik. A. No General Jurisdiction Exists. A court may assert jurisdiction when the corporation’s “affiliations with the State are so continuous and systematic as to render them essentially at home in the forum State.” Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011) (internal quotations omitted). “For general jurisdiction to exist, a defendant must engage in continuous and systematic general business contacts that approximate physical presence in the forum state.” Id. at 1223-24 (internal quotations and citations omitted). In determining whether the contacts are sufficiently substantial, continuous, and systematic, the courts consider “their longevity, continuity, volume, economic impact, physical presence, and integration into the state’s regulatory or economic markets.” Id. at 1224 (internal quotations omitted). Here, Plaintiffs have not sufficiently alleged systematic and continuous contact with California such that this Court would have personal jurisdiction over Valeant Ireland or Bausch & Lomb Saglik. As an initial matter, neither of these entities are California residents—Valeant Ireland is incorporated in Ireland with its principal place of business in Ireland, and Bausch & Lomb Saglik is incorporated in Turkey with its principal place of business in Turkey. (See Declaration of Tony M. Diab (“Diab Decl.”), Ex. A, Valeant Holdings’ Responses to Plaintiffs’ Special Jurisdictional Interrogatories (Set One), No. 3; Ex. B, Bausch & Lomb Saglik’s Responses to Plaintiffs’ Special Jurisdictional Interrogatories (Set One), No. 3; Ex. C, Declaration of Pamela Lewis at ¶¶ 14, 22.) Nor do they conduct any business in the State of California. (See Diab Decl., Ex. A, No. 5; Ex. B, No. 5; Ex. C at ¶¶ 15-21, 23-28.) Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 13 of 35 Page ID #:549 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE Plaintiffs’ allegation that they are alter egos of each other is without merit. (FAC at ¶¶ 16, 61.) And, even if they were wholly owned subsidiaries, that would still be insufficient. Hall v. Club Corp. of Am., 33 F. App’x 873, 875 (9th Cir. 2002) (“jurisdiction over a parent corporation does not automatically establish jurisdiction over a wholly owned subsidiary”) (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 781 n.13 (1984)). Moreover, Plaintiffs’ allegation that Valeant Ireland is a wholly owned subsidiary of Valeant Pharmaceuticals International, Inc. (FAC at ¶¶ 16, 61), is also in error. During Plaintiffs’ jurisdictional discovery, Valeant Ireland stated that it is a wholly owned subsidiary of Valeant International Luxembourg, which is a distinct and different entity from the defendant in this lawsuit Valeant Pharmaceuticals International, Inc. (See Diab Decl., Ex. A, No. 6.) As to Bausch & Lomb Saglik, it is a wholly owned subsidiary of co- defendant Valeant Ireland. (See id.; Ex. B, No. 6.) None of these entities are conducting business in the State of California. (See id.) Neither Valeant Ireland nor Bausch & Lomb Saglik are wholly owned subsidiaries of Valeant Pharmaceuticals International, Inc. Plaintiffs cannot simply rely on bare allegations in the complaint to assert personal jurisdiction, “but rather [are] obligated to come forward with facts, by affidavit or otherwise.” MGA Entm’t, Inc. v. Innovation First, Inc., 525 Fed. Appx. 576, 577 (9th Cir. 2013). Despite conducting extensive jurisdictional discovery comprising sets of 25 interrogatories, 42 requests for production, and 86 requests for admission for each of the four Valeant Defendants, Plaintiffs have not provided sufficient factual allegations conferring personal jurisdiction over Valeant Ireland or Bausch & Lomb Saglik. The Court should dismiss Valeant Ireland and Bausch & Lomb Saglik as parties to this lawsuit. B. No Specific Jurisdiction Exists. As to specific jurisdiction, the Ninth Circuit employs “a three-part test to assess whether a defendant has sufficient contacts with the forum state,” including: (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 14 of 35 Page ID #:550 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s forum- related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e., it must be reasonable. Picot, 780 F.3d at 1211. The plaintiff bears the burden of proving the first two prongs, and if successful, “the burden shifts to the defendant to set forth a compelling case that the exercise of jurisdiction would not be reasonable.” Id. at 1211-12. 1. Neither Valeant Ireland nor Bausch & Lomb Saglik Purposefully Avail or Purposefully Direct Their Activities Toward California. “For claims sounding in contract, [the courts] apply a ‘purposeful availment’ analysis and ask whether a defendant has purposefully availed himself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. at 1212 (internal quotations omitted). “A contract alone does not automatically establish minimum contacts . . . [r]ather, there must be actions by the defendant himself that create a substantial connection with the forum State.” Id. (internal quotations and citations omitted). Plaintiffs do not provide any factual allegations showing that either Valeant Ireland or Bausch & Lomb Saglik purposefully availed themselves of the privilege of conducting activities in California. As discussed above, neither of these entities have a presence or conduct any business in California. See Swartz, 476 F.3d at 766 (noting that “mere ‘bare bones’ assertions of minimum contacts with the forum or legal conclusions unsupported by specific factual allegations will not satisfy a plaintiff’s pleading burden”). Plaintiffs have failed to satisfy this prong as to the contract-related claims. 1 1 Furthermore, the formation and execution of the contracts at issue in this litigation have no contact to California, nor does the subject matter of the contracts have any tie to or effect on California. Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 15 of 35 Page ID #:551 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE “For claims sounding in tort, [the courts] apply a ‘purposeful direction’ test and look to evidence that the defendant has directed his actions at the forum state, even if those actions took place elsewhere.” Id. at 1212. In determining purposeful direction, the Ninth Circuit applies a “three-part ‘effects’ test derived from Calder v. Jones, 465 U.S. 783 (1984).” Id. at 1213-14. “Under this test, a defendant purposefully directed his activities at the forum if he: (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.” Id. at 1214 (internal quotations omitted). Plaintiffs likewise fail to establish that either Valeant Ireland or Bausch & Lomb Saglik purposefully directed their activities towards California. No intentional act by these entities expressly aimed at California, or harm caused by these entities that is likely to be suffered in California, is ever alleged. Plaintiffs fail to satisfy their burden as to the tort- related claims. To the extent Plaintiffs rely on allegations that Valeant Ireland and Bausch & Lomb Saglik are alter egos of Valeant, it is meritless. The alter ego theory simply does not apply. 2. No Claim Arises Out Of Or Relates To Valeant Ireland Or Bausch & Lomb Saglik’s Forum-Related Activities. Neither Valeant Ireland nor Bausch & Lomb Saglik conduct any activities in California, therefore no claim arises from such activities. Such allegations would be implausible given the absence of these entities’ connection and contacts to California. Again, despite their extensive jurisdictional discovery, Plaintiffs have failed to meet their burden of demonstrating that either Valeant Ireland or Bausch & Lomb Saglik have sufficient contacts with California. They cannot establish specific jurisdiction over either defendant. Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 16 of 35 Page ID #:552 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE V. PLAINTIFFS’ CLAIMS BASED ON AN ALLEGED BAILMENT CONTRACT FAIL BECAUSE THERE WAS NO VALID CONTRACT AND NO BREACH. Plaintiffs’ claims for breach of contract (fourth cause of action), tortious breach of the implied covenant of good faith and fair dealing (fifth cause of action), and breach of fiduciary duty (sixth cause of action) asserted against the Valeant Defendants fail because no valid contract existed between Plaintiffs and the Valeant Defendants, and even if there were a contract, there was no breach. A. Plaintiffs’ Claim For Breach Of Contract Fails. “To state a claim for breach of contract under California law, a plaintiff must allege (1) the existence of a contract; (2) that he has performed or that his nonperformance is excused; (3) defendant’s breach of the contract; and (4) damages resulting from the breach.” Greenwich Ins. Co. v. Rodgers, 729 F. Supp. 2d 1158, 1163 (C.D. Cal. 2010). In this instance, Plaintiffs allege a bailment contract was formed with the Valeant Defendants when, in 2011, Dr. Malyugin provided two Reper-NN GRIN lenses for Bausch & Lomb to use in testing and research. (FAC at ¶ 87.) Under California law, “[a] bailment is made by one giving to another, with his consent, the possession of personal property to keep for the benefit of the former, or of a third party.” McKell v. Washington Mut., Inc., 142 Cal. App. 4th 1457, 1490 (2006) (internal quotations omitted). The FAC contains no allegations of a written agreement with Bausch & Lomb concerning the GRIN lenses. As to an implied agreement, no factual allegations regarding consideration—an essential element to the formation of a contract—are alleged. Cal. Civ. Code § 1550. See Gallagher v. Holt, 436 F. App’x 754, 755 (9th Cir. 2011) (noting that in California, one needs to prove the existence of consideration to maintain an action for breach of contract). Plaintiffs have not sufficiently pled the existence of a contract. Even if Plaintiffs could establish the existence of a valid contract, they cannot plausibly allege a breach. “In an action for breach of a bailment contract, the bailor must prove that the agreement is a bailment contract, the property was deposited with the bailee, a Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 17 of 35 Page ID #:553 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE demand was made for the property, and the bailee failed to return the property.” Needelman v. DeWolf Realty Co., 239 Cal. App. 4th 750, 762 n.6 (2015). Here, there are no allegations that Plaintiffs (the bailor) demanded the return of the two GRIN lenses from Bausch & Lomb (the bailee), and that Bausch & Lomb failed to return the lenses. On the contrary, Plaintiffs allege that after Dr. Malyugin provided the lenses to Bausch & Lomb, on October 30, 2011, Dr. Malyugin received a written report from Bausch & Lomb on the testing of the lenses; and Dr. Malyugin sent a copy of the report to Reper-NN. (FAC at ¶ 34.) Thereafter, on October 6, 2013, Dr. Malyugin “took the initiative, and set up a meeting with both Mr. Altmann and Mr. Joel Pinson” of Bausch & Lomb. (Id. at ¶ 35.) Lastly, on October 30, 2013, Mr. Altmann, on behalf of Bausch & Lomb, sent an email to Dr. Malyugin stating that Bausch & Lomb “decided to pass” on the lenses. (Id. at ¶ 36.) Nowhere in the FAC or attached declaration does it state that Dr. Malyugin (or anyone on behalf of Plaintiffs) demanded the lenses and Bausch & Lomb (or any Valeant Defendant) failed to return the lenses. Moreover, Plaintiffs cannot establish that they suffered damages from the alleged breach of a bailment contract. The crux of Plaintiffs’ grievance in this lawsuit is that Anadolu Tip (with whom Plaintiffs entered into three agreements) sold certain assets to the Valeant Defendants without Plaintiffs’ consent and/or knowledge. (See FAC at ¶¶ 17, 22, 37-39, 41, 44-45, 47-52, 54, 59, 89-90.) As such, it is implausible that Plaintiffs suffered $15 million in damages for the alleged breach of a bailment contract when, in reality, their grievance stems from an alleged breach of three agreements formed between Anadolu Tip and Plaintiffs—to which the Valeant Defendants neither were nor are a party. For these reasons, Plaintiffs’ claim for breach of contract fails. B. Plaintiffs’ Claim For Tortious Breach Of Implied Covenant Of Good Faith And Fair Dealing Fails. As to the claim for tortious breach of implied covenant of good faith and fair dealing, such claim is “necessarily based on the existence of an underlying contractual relationship, Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 18 of 35 Page ID #:554 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE and the essence of the covenant is that neither party to the contract will do anything which would deprive the other of the benefits of the contract.” Dallas & Lashmi, Inc. v. 7-Eleven, Inc., 112 F. Supp. 3d 1048, 1061 (C.D. Cal. 2015) (quoting Milne Emps. Ass’n v. Sun Carriers, 960 F.2d 1401, 1411 (9th Cir. 1991)). In this instance, it is not alleged Plaintiffs and the Valeant Defendants had an underlying contractual relationship that would form the basis for this claim. And even assuming the bailment contract was a valid agreement, there is no indication that the Valeant Defendants did anything to deprive Plaintiffs of the benefits of the contract. Instead, Plaintiffs allege Bausch & Lomb provided Dr. Malyugin with a written report on the testing of the lenses, and it appears Plaintiffs were sufficiently content with Bausch & Lomb such that two years later, Dr. Malyugin “took the initiative” to set up a meeting with Mr. Altmann and Mr. Pinson. (FAC at ¶¶ 34-35.) These allegations are not indicative of a breach. Additionally, Plaintiffs appear to conflate the alleged breach of different contracts. For instance, they allege the existence of a bailment contract with Bausch & Lomb in 2011. (FAC at ¶¶ 94-95.) Then, Plaintiffs allege that the Valeant Defendants “engaged in a tortious series of bad faith transfers from Defendant Anadolu Tip to the Valeant Defendants.” (Id. at ¶ 96.) Plaintiffs appear to reference the agreements formed between Anadolu Tip and the Valeant Defendants, which was an alleged breach of the three contracts formed between Anadolu Tip and Plaintiffs. Plaintiffs’ allegations are unclear as to which agreement the Valeant Defendants purportedly breached, and from which Plaintiffs allegedly suffered damages. There is simply no basis for a claim for tortious breach of implied covenant of good faith and fair dealing. C. Plaintiffs’ Claim For Breach Of Fiduciary Duty Also Fails. “To state a claim for breach of fiduciary duty, a complaint must allege the existence of a fiduciary duty, its breach, and damages resulting therefrom.” Neilson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1137 (C.D. Cal. 2003). “Whether a fiduciary duty exists is generally a question of law.” Marzec v. Cal. Pub. Employees Ret. Sys., 236 Cal. App. 4th Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 19 of 35 Page ID #:555 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE 889, 915 (2015). And California law recognizes the existence of a fiduciary duty only in limited circumstances. See e.g., id. at 915-16 (between trustee and beneficiary); Britton v. Girardi, 235 Cal. App. 4th 721, 734 (2015) (between an attorney and client); Petro-Diamond Inc. v. SCB & Assocs., LLC, 122 F. Supp. 3d 949, 959 (C.D. Cal. 2015) (between a broker and customer). Here, Plaintiffs’ basis for a fiduciary duty is the alleged bailment contract. (FAC at ¶ 103.) Plaintiffs have failed to sufficiently allege the existence of a fiduciary relationship with the Valeant Defendants. For instance, the Valeant Defendants are not Plaintiffs’ trustee, attorney, or broker such that a fiduciary duty would arise. Mere allegations about the existence of a purported bailment contract are insufficient to find there was a fiduciary duty as a matter of law. Even if Plaintiffs’ allegations about the existence of a purported bailment contract giving rise to a fiduciary relationship are valid, there is no indication of a breach. The bailment contract was limited to the testing of the two Reper-NN GRIN lenses, and Bausch & Lomb performed by conducting the testing and providing Reper-NN with a written report. (FAC at ¶ 34.) Bausch & Lomb, thereafter, notified Dr. Malyugin that it would not acquire the lenses. (Id. at ¶¶ 35-36.) There is no indication that during the time of the alleged contract, Bausch & Lomb misappropriated or in any other way breached its fiduciary duty towards Plaintiffs. The Valeant Defendants’ decision to enter into an agreement with Anadolu Tip years later does not constitute a breach of the fiduciary duty that was limited to safeguarding the two lenses. In sum, given the absence of a valid contract between Plaintiffs and the Valeant Defendants, the absence of a valid fiduciary relationship, and the absence of a breach of any kind, Plaintiffs cannot plausibly maintain a cause of action for breach of contract, tortious breach of implied covenant of good faith and fair dealing, or breach of fiduciary duty. Due to these fatal defects, the fourth, fifth, and sixth causes of action should be dismissed with prejudice. Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 20 of 35 Page ID #:556 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE VI. PLAINTIFFS FAIL TO STATE A CLAIM OF MISAPPROPRIATION OF TRADE SECRETS. Plaintiffs assert a claim for misappropriation of trade secrets under California law, Cal. Civ. Code § 3426.1(b) (thirteenth cause of action) and federal law, the Defend Trade Secrets Act, 18 U.S.C. § 1836 (“DTSA”) (fourteenth cause of action). In this instance, Plaintiffs fail to sufficiently allege the existence of a protected trade secret and misappropriation. A. Trade Secret Misappropriation Under California Law. California Civil Code § 3426.1(b) “prohibits misappropriation of a trade secret, that is, acquisition, disclosure, or use of a trade secret by a person who knows or has reason to know that the trade secret was acquired by improper means.” Lepton Labs, LLC v. Walker, 55 F. Supp. 3d 1230, 1237 (C.D. Cal. 2014) (internal quotations omitted). A trade secret protected under the statute “includes information that ‘[d]erives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use’ and is the subject of reasonable measures to maintain its secrecy.” Id. (quoting Cal. Civ. Code § 3426.1(d)). In this instance, Plaintiffs fail to sufficiently allege the existence of a trade secret. Plaintiffs identify the subject technology as the alleged trade secret. (FAC at ¶ 166.) Plaintiffs, however, do not provide sufficient factual allegations; instead, they merely reiterate the standard for what constitutes a trade secret. For example, they state that the subject technologies and asset “consist of and contain information, including a formula, pattern, compilation, program, device, method, technique, and/or process, that derives independent economic value, actual, or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use, and were and continue to be the subject of efforts that are reasonable under the circumstances to maintain their secrecy.” (FAC at ¶ 167.) They do not provide factual allegations of how the subject matter specifically constitutes a trade secret. See Jun-En Enter. V. Lin, No. CV 12- Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 21 of 35 Page ID #:557 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE 2734 PSG (SSx), 2013 WL 12126115, at *2 (C.D. Cal. June 17, 2013) (opining that merely restating the statutory definition is insufficient and that plaintiff must explain “why the vague category of information regarding [the alleged trade secret] was proprietary information); HiRel Connectors, Inc. v. Dep’t of Defense of U.S., No. CV 01-11069 DT (BQRx), 2003 WL 27168678, at *11 (C.D. Cal. Apr. 14, 2003) (“[B]ased on the standards of notice pleading, Defendants have a right to know what exactly Plaintiff is claiming as its trade secrets.”). Moreover, Plaintiffs fail to allege how the purported trade secret was the subject of efforts to maintain its secrecy. Instead, Plaintiffs merely allege that the “confidential information is not generally known to the public or the industry,” and its confidentiality is maintained by “restricting access to the confidential information” and “restricting access to the places where the confidential information is put to use.” (Id. at ¶ 166.) These allegations lack specific factual allegations required by the federal pleading standards, and consist only of conclusory statements. This is insufficient to designate the technology at issue as a “trade secret.” See Morton v. Rank Am., Inc., 812 F. Supp. 1062, 1075 (C.D. Cal. 1993) (noting that plaintiffs must provide “a more definite statement specifying the facts underlying the Plaintiffs’ claim for misappropriation,” as it concerns efforts to maintain secrecy). Most importantly, Plaintiffs cannot plausibly allege that the Valeant Defendants misappropriated its purported trade secret. Although Plaintiffs allege that the Valeant Defendants acquired access to the subject technology through its agreement with Anadolu Tip (FAC at ¶ 171), there is no indication that the Valeant Defendants knew or had reason to know that Anadolu Tip was required to first obtain the consent of Reper-NN or Icon Lab. To the extent Plaintiffs rely on the alleged bailment contract (FAC at ¶ 173), there is no allegation that the Valeant Defendants disclosed the alleged trade secret. Nor is there any allegation that the Valeant Defendants acquired the alleged trade secret and failed to return, or that they used it for improper means. On the contrary, Plaintiffs allege that Bausch & Lomb wrote a written report and notified them that it would not acquire the subject Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 22 of 35 Page ID #:558 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE technology. (Id. at ¶¶ 34, 36.) In sum, Plaintiffs’ allegations cannot support a claim for trade secret misappropriation. B. Trade Secret Misappropriation Under Federal Law. “Under the DTSA, ‘[a]n owner of a trade secret that is misappropriated may bring a civil action under . . . if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.” Avago Techs. U.S. Inc. v. Nanoprecision Prod., Inc., No. 16-CV-03737-JCS, 2017 WL 412524, at *8 (N.D. Cal. Jan. 31, 2017) (quoting 18 U.S.C. § 1836(b)(1)). “‘Misappropriation’ under DTSA includes both the acquisition and disclosure of trade secrets.” Id. (citing 18 U.S.C. §§ 1839(5)(A)&(B)). Moreover, the “DTSA applies to ‘any misappropriation of a trade secret . . . for which any act occurs on or after the date of the enactment of [the] Act.” Id. (quoting Defend Trade Secrets Act of 2016, PL 114-153, May 11, 2016, 130 Stat. 376). “The date of enactment was May 11, 2016.” Id. Here, Plaintiffs fail to sufficiently allege misappropriation of a trade secret for the same reasons as above. Furthermore, this claim fails because Plaintiffs allege the misappropriation occurred in 2014. (FAC at ¶ 193.) The alleged misappropriation took place before the DTSA was enacted, therefore the DTSA cannot apply to this claim. Due to this fatal defect, the Court should dismiss this claim with prejudice. VII. PLAINTIFFS’ FRAUD-BASED CLAIMS FAIL BECAUSE THEY FAIL TO PLEAD WITH THE REQUIRED SPECIFICITY. Plaintiffs’ claims for fraud and deceit (seventeenth cause of action), constructive fraud (eighteenth cause of action), and any other fraud-based claim are subject to Rule 9(b)’s heightened pleading standards. Kearns v. Ford Motor Co., 567 F.3d 1120, 1124-25 (9th Cir. 2009). Rule 9(b) “requires a pleader of fraud to detail with particularity the time, place, and manner of each act of fraud, plus the role of each defendant in each scheme.” Lancaster Cmty. Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 405 (9th Cir. 1991). The plaintiff must also provide allegations showing the “who, what, when, where, and how of the misconduct charged.” Vess, 317 F.3d at 1106. Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 23 of 35 Page ID #:559 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE A. Fraud and Deceit To state a claim for fraud or deceit, the plaintiff must allege “a representation, usually of fact, which is false, knowledge of its falsity, intent to defraud, justifiable reliance upon the misrepresentation, and damages resulting from that justifiable reliance.” Dealertrack, Inc. v. Huber, 460 F. Supp. 2d 1177, 1182 (C.D. Cal. 2006). Here, Plaintiffs allege that in the process of acquiring assets from Anadolu Tip, the Valeant Defendants should have known that Anadolu Tip had formed agreements with Plaintiffs that restricted the sale of certain assets without Plaintiffs’ consent. (FAC at ¶¶ 225-226.) They also allege that the Valeant Defendants “entered into a plot” to acquire Plaintiffs’ subject technology. (Id. at ¶¶ 227, 229.) Plaintiffs further allege that the Valeant Defendants were obligated to, but failed to disclose to Plaintiffs that they were “selling and transferring” to unknown third parties the subject technology. (Id. at ¶¶ 236-238.) Plaintiffs’ allegations are insufficient to meet the heightened pleading standard. First, Plaintiffs do not allege what was the misrepresentation of fact purportedly made by the Valeant Defendants towards Plaintiffs. Rather, it appears that the Valeant Defendants entered into a valid agreement with Anadolu Tip, and Plaintiffs are upset that such an agreement was formed without their knowledge. To the extent this sentiment is based on the subject technology, it appears their grievance should be directed towards Anadolu Tip, not the Valeant Defendants as the Valeant Defendants had no existing contractual relationship with Plaintiffs. Second, to the extent Plaintiffs attempt to contend that a “duty to disclose” arose from the 2011 alleged bailment contract, there can be no such duty. The 2011 alleged bailment contract was formed for the limited scope of testing two Reper-NN lenses; any obligation that could have arisen from that limited contractual relationship cannot extend to subsequent purchases made by Valeant from Anadolu Tip three years later. Third, there is no indication that the Valeant Defendants had an intent to defraud. Fourth, there are no allegations of how Plaintiffs relied on any misrepresentation made by the Valeant Defendants. Plaintiffs allege that the Valeant Defendants knew or should have known about Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 24 of 35 Page ID #:560 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE Plaintiffs’ prior agreements with Anadolu Tip, but there are no specific allegations that Plaintiffs actually relied on a factual misrepresentation made by the Valeant Defendants. In sum, Plaintiffs have failed to allege a misrepresentation of fact made by the Valeant Defendants to Plaintiffs, with an intent to defraud, and Plaintiffs’ reliance on that statement of fact. Their allegations are insufficient to satisfy the heightened pleading standard of Rule 9(b) and should, therefore, be dismissed with prejudice. B. Constructive Fraud To state a claim for constructive fraud, the plaintiff must allege “(1) a fiduciary or confidential relationship; (2) an act, omission or concealment involving a breach of that duty; (3) reliance; and (4) resulting damage.” Dealertrack, Inc., 460 F. Supp. 2d at 1183. Plaintiffs allege the Valeant Defendants breached their fiduciary duty to Plaintiffs by failing to disclose the sale entered into between the Valeant Defendants and Anadolu Tip, including failing to disclose the amount of the agreement. (FAC at ¶¶ 243-245, 253.) Plaintiffs also allege that due to the 2011 alleged bailment contract, the Valeant Defendants had a duty not to transfer Plaintiffs’ assets; and, they allege that the Valeant Defendants and Anadolu Tip “entered into a plot” to wire transfer funds. (Id. at ¶¶ 247-248, 251.) As with the fraudulent claim above, Plaintiffs likewise fail to sufficiently plead a claim for constructive fraud. First, there are insufficient allegations about a fiduciary or confidential relationship between Plaintiffs and the Valeant Defendants. Second, to the extent Plaintiffs base their claim on the alleged 2011 bailment contract, such contract was limited to the testing of two Reper-NN lenses. Any obligations arising from that limited contract cannot extend to a purchase made by the Valeant Defendants with a third party three years later. As such, Plaintiffs cannot plausibly allege a breach of the purported bailment contract. Third, Plaintiffs’ allegations regarding concealment are insufficient. Plaintiffs’ grievance is that the Valeant Defendants entered into a subsequent agreement with Anadolu Tip, and Plaintiffs were not informed of such agreement. There is no allegation that the Valeant Defendants intentionally concealed a fact that would involve the breach of a duty. Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 25 of 35 Page ID #:561 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE Fourth, there is also no indication that Plaintiffs relied on any such concealment. On the contrary, if Plaintiffs purportedly did not know of the alleged concealment, they could not have relied on it and have suffered damages. Plaintiffs have not sufficiently pled constructive fraud as they have failed to provide specific factual allegations about a fiduciary or confidential relationship, a purported breach of that duty, and Plaintiffs’ reliance. This claim should be dismissed with prejudice. VIII. PLAINTIFFS’ UCL CLAIM FAILS BECAUSE IT IS INSUFFICIENTLY PLED. Plaintiffs’ claim for violation of the UCL (ninth cause of action) is insufficiently pled. The UCL provides relief for “unfair competition,” defined as “any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200; McVicar v. Goodman Glob., Inc., 1 F. Supp. 3d 1044, 1049-50 (C.D. Cal. 2014). Here, Plaintiffs allege that the Valeant Defendants “entered into a plot” to acquire Plaintiffs’ lenses and the subject technology without their consent, and that the Valeant Defendants and Anadolu Tip (collectively, “Defendants”) entered into a plot to wire transfer funds from offshore accounts to banks in the United States and the Middle East. (FAC at ¶¶ 129, 132.) Plaintiffs further allege that in utilizing mails, emails, internet, and wires of the United States, Defendants violated federal criminal statutes. (Id. at ¶¶ 133-134.) While colorful, Plaintiffs’ allegations are insufficient to plead a violation of the UCL. A. The Allegations Of Unlawful Practice Are Insufficient. Plaintiffs allege that Defendants’ conduct is unlawful because they violated contractual obligations to Reper-NN and Icon Lab GmbH. (FAC at ¶ 137.) “The unlawful prong of the UCL borrows violations of other laws and treats them as unlawful practices.” McVicar, 1 F. Supp. 3d at 1053 (internal quotations omitted). “Virtually any law federal, state or local can serve as a predicate for an action under [the UCL].” Smith v. State Farm Mut. Auto Ins. Co., 93 Cal. App. 4th 700, 717-18 (2001). Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 26 of 35 Page ID #:562 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE Here, it appears Plaintiffs’ basis for the “unlawful” prong is the alleged violation of contractual obligations. A breach of contract can form the predicate for a UCL claim if “it also constitutes conduct that is unlawful, or unfair, or fraudulent.” Arce v. Kaiser Found. Health Plan, Inc., 181 Cal. App. 4th 471, 489 (2010) (internal quotations omitted). It cannot, by itself, constitute “unlawful” conduct. Since the sole basis for Plaintiffs’ “unlawful” claim is the alleged violation of a contract, this prong is insufficiently pled. To the extent Plaintiffs attempt to invoke the alleged violation of the criminal code to claim unlawful practice under the UCL, that must fail as a matter of law. The Ninth Circuit has found that dismissing claims under 18 U.S.C. §§ 1341 and 1343 is proper “because there is no private civil right of action provided by those criminal statutes.” Valero v. Bac Home Loans Servicing, LP, No. 13-16163, 2016 WL 3450204, at *1 (9th Cir. June 23, 2016); Cirino v. GMAC Mortg. LLC, No. 12-56038, 2016 WL 3435606, at *1 (9th Cir. June 22, 2016) (same). The same is true with the alleged violation of any section under Title 18 of the United States Code, including 18 U.S.C. § 1952, et seq. Machuca v. Los Angeles World Airports, No. CV 14-09852 SJO RZX, 2015 WL 276922, at *3 (C.D. Cal. Jan. 21, 2015) (noting that “civil causes of action do not generally lie under the criminal statutes contained in Title 18”). Further, to the extent Plaintiffs attempt to bootstrap an alleged violation of the criminal code to support its UCL claim, such attempt fails. For instance, 18 U.S.C. §§ 1341 and 1343 may be referenced in the context of the Racketeer Influenced and Corrupt Organizations Act (RICO). Wilmington Trust, N.A. v. Mobley, No. CV15-2910 CAS AJWX, 2015 WL 3649578, at *2 n.1 (C.D. Cal. June 10, 2015). But it is unclear, here, whether Plaintiffs are alleging racketeering activities and/or attempt to pursue a RICO claim as an “unlawful” practice under the UCL. In such instances, Plaintiffs’ allegations “must plausibly allege a defendant’s specific intent to defraud” and “must be pleaded with particularity” under Rule 9(b). Bitton v. Gencor Nutrientes, Inc., 654 F. App’x 358, 363 (9th Cir. 2016) (internal quotations omitted). And as discussed above, Plaintiffs fail to provide allegations Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 27 of 35 Page ID #:563 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE of fraud with sufficient particularity such as to satisfy the heightened pleading standards of Rule 9(b). The same is true for Plaintiffs’ allegations under 18 U.S.C. § 1952, et seq. and California Penal Code § 641.3. Mattel, Inc. v. MGA Entm’t, Inc., 782 F. Supp. 2d 911, 1027 (C.D. Cal. 2011) (discussing 18 U.S.C. § 1952 in the context of racketeering); Morning Star Packing Co. v. S.K. Foods, L.P., No. 2:09-cv-00208-KJM, 2015 WL 3797774, at *1 (E.D. Cal. June 18, 2015) (referencing Cal. Pen. Code § 641.3 in the context of racketeering). Furthermore, California Penal Code § 641.3 involves an employer-employee relationship, and is, therefore, inapplicable in this action given the absence of allegations that any party is and/or was an employee of another party. Plaintiffs’ allegations of an unlawful business practice under the UCL, and references to criminal statutes are unclear. Any allegation regarding criminal conduct allegedly performed by the Valeant Defendants are unsupported and improper, and should therefore be dismissed with prejudice. B. The Allegations Of Unfair Practice Are Insufficient. Plaintiffs allege Defendants’ conduct is unfair because it seeks to nullify the policies underlying every contract, including the duty to act in good faith. (FAC at ¶ 138.) Courts utilize two tests to determine whether a business practice is “unfair.” First, the balancing test “defines an ‘unfair’ business practice as one in which the gravity of the harm to the victim outweighs the utility of the defendant’s conduct.” McVicar, 1 F. Supp. 3d at 1053-54 (internal quotations omitted). Second, the public policy test “requires that the UCL claim be tethered to some specific constitutional, statutory, or regulatory provisions.” Id. In this instance, because Plaintiffs’ basis for a UCL claim is not tethered to a constitutional, statutory, or regulatory provision, the balancing test would be more appropriate. As stated above, the Valeant Defendants did not have a valid contract with Plaintiffs. To the extent Plaintiffs relies on the alleged 2011 use of lenses for testing to maintain a bailment contract, there are insufficient allegations showing how the Valeant Defendants’ conduct was unfair. While Plaintiffs allege that the Valeant Defendants were involved in a Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 28 of 35 Page ID #:564 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE 2014 transaction with Anadolu Tip, that still does not plausibly form the basis for liability against Valeant Defendants. It is not “unfair,” as a matter of law, for a business to turn down an agreement with one entity, and then years later, enter into an agreement with a different entity. This is the course of business. Moreover, as discussed above, there is no indication that the Valeant Defendants breached any type of agreement it may have had with Plaintiffs. As such, the purported gravity of the harm to Plaintiffs does not outweigh the utility of the Valeant Defendants’ conduct of entering into subsequent agreements with other entities. This prong is insufficiently pled. C. The Allegations Of Fraudulent Conduct Are Insufficient. Plaintiffs allege Defendants’ scheme is fraudulent because it was knowingly calculated and intended to mislead. (FAC at ¶ 139.) A fraudulent business practice “is one which is likely to deceive the public, and may be based on representations to the public which are untrue, and also those which may be accurate on some level, but will nonetheless tend to mislead or deceive.” In re WellPoint, Inc. Out-of-Network UCR Rates Litig., 903 F. Supp. 2d 880, 925 (C.D. Cal. 2012). As discussed above, Plaintiffs fail to provide sufficient allegations to plead fraud under the heightened standard of Rule 9(b). See id. (“UCL claims based on fraud are subject to the heightened pleading requirements of Rule 9(b).”) There is no allegation that the Valeant Defendants made a representation to Plaintiffs that was untrue, and was intended to mislead or deceive. Plaintiffs also fail to specifically allege how they relied on the purported misrepresentation. See id. (“Because reliance is the causal mechanism of fraud, a plaintiff proceeding on a claim of misrepresentation as the basis of his or her UCL action must demonstrate actual reliance on the allegedly deceptive or misleading statements, in accordance with well-settled principles regarding the elements of reliance in ordinary fraud actions.”) (internal quotations omitted). Plaintiffs fail to provide specific factual allegations to support this prong. As such, this claim should be dismissed. Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 29 of 35 Page ID #:565 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE D. Plaintiffs Cannot Recover Damages. The remedies under a UCL claim are limited. Warner v. Tinder Inc., 105 F. Supp. 3d 1083, 1090-91 (C.D. Cal. 2015). Since a UCL action is equitable in nature, damages cannot be recovered; a plaintiff is generally limited to injunctive relief and restitution. Id. To the extent Plaintiffs seek damages (FAC at ¶¶ 143-44), such request must be dismissed as a matter of law. E. California Does Not Permit Extraterritorial Application Of The UCL. The California Supreme Court has held that certain state statutes presumptively do not apply to occurrences taking place outside of California. Sullivan v. Oracle Corp., 51 Cal. 4th 1191, 1207 (2011) (internal quotations omitted). It found that “the Legislature did not intend a statute to be operative, with respect to occurrence outside the state, unless such intention is clearly expressed or reasonably to be inferred from the language of the act or from its purpose, subject matter or history.” Id. As to the UCL, the California Supreme Court held that “[n]either the language of the UCL nor its legislative history provides any basis for concluding the Legislature intended the UCL to operate extraterritorially.” Id. In determining whether the UCL applies to non-California residents, “courts consider where the defendant does business, whether the defendant’s principal offices are located in California, where class members are located, and the location from which the relevant decisions were made.” Warner v. Tinder Inc., 105 F. Supp. 3d 1083, 1096-97 (C.D. Cal. 2015). To the extent Plaintiffs allege that any conduct in violation of the UCL was committed outside of California, such claim should be dismissed. While Plaintiffs allege the plot was “initiated” in Aliso Viejo, California (FAC at ¶ 131), there are no allegations of where the relevant decisions were made. Indeed, Plaintiffs allege that acts were committed around the world. (FAC at ¶¶ 45-47, 132-134.) As such, the UCL cannot apply to conduct committed outside of California. Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 30 of 35 Page ID #:566 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE IX. PLAINTIFFS FAIL TO STATE SUFFICIENT FACTS SHOWING ENTITLEMENT TO RELIEF. As to the remaining claims, they each fail because Plaintiffs’ allegations are devoid of sufficient facts to state a claim upon which relief can be granted. A. Conversion “Conversion, under California law, is the wrongful interference with the dominion over one’s ownership or right to property.” MTC Elec. Techs. Co., Ltd. v. Leung, 889 F. Supp. 396, 402-03 (C.D. Cal. 1995). Further, “[a]ny unauthorized sale or transfer of another’s property constitutes conversion.” Id. In this instance, Plaintiffs’ claim for conversion (seventh cause of action) asserted against the Valeant Defendants fails because the FAC lacks allegations of how the Valeant Defendants conducted an unauthorized sale or transfer of the subject technology since it was Anadolu Tip who possessed the rights and decided to sell and/or transfer the rights. Thus, this claim should be dismissed. B. Unjust Enrichment As to the unjust enrichment claim (eighth cause of action), a plaintiff must allege “(1) receipt of a benefit; and (2) unjust retention of the benefit at the expense of another.” In re ConAgra Foods Inc., 908 F. Supp. 2d 1090, 1113 (C.D. Cal. 2012). Plaintiffs fail to provide factual allegations of how the Valeant Defendants, in particular, received a benefit and unjustly retained the benefit. To the extent Plaintiffs rely on the alleged 2011 bailment contract, there is no indication that the Valeant Defendants unjustly retained the benefits of the alleged agreement. On the contrary, Plaintiffs allege Bausch & Lomb provided Dr. Malyugin with a written report, and then told Dr. Malyugin that it would not acquire Reper- NN’s lenses. (FAC at ¶¶ 35-36.) There is no basis for Plaintiffs’ allegations, and as such, this claim should be dismissed. C. Interference with Contractual Relationship Plaintiffs assert claims for intentional interference with contractual relationship (tenth cause of action), which requires a plaintiff to allege “(1) a valid contract between plaintiff Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 31 of 35 Page ID #:567 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach of disruption of the contractual relationship; and (5) resulting damage.” UMG Recordings, Inc. v. Glob. Eagle Entm’t, Inc., 117 F. Supp. 3d 1092, 1115 (C.D. Cal. 2015). Similarly, to plead a claim for negligent interference (eleventh cause of action), a plaintiff must allege “(1) existence of an economic relationship between plaintiff and a third party; (2) defendant’s knowledge of the existence of the relationship, i.e., defendant was aware or should have been aware that action without due care would interfere with this relationship; (3) defendant was negligent; (4) defendant’s negligence actually interfered with or disrupted the relationship; and (5) defendant’s negligence caused plaintiff’s damage.” Crescent Wood Working Co., Ltd. v. Accent Furniture, Inc., No. EDCV 04-1318 RT (PJWx), 2005 WL 5918848, at *7 (C.D. Cal. Aug. 10, 2005). Here, Plaintiffs fail to sufficiently allege the Valeant Defendants had knowledge of Plaintiffs’ purported contract with Anadolu Tip. Merely alleging that such contract was “well known and common knowledge” in the community is conclusory and insufficient. (FAC at ¶¶ 148, 156.) Moreover, the simple act of entering into an agreement with Anadolu Tip is insufficient to hold the Valeant Defendants liable for purported inducement. There is no allegation that the Valeant Defendants either intentionally or negligently interfered with and/or disrupted the purported contract between Plaintiffs and Anadolu Tip. To the extent Anadolu Tip breached its contract with Plaintiffs, the Valeant Defendants should not be held liable. Due to insufficient factual allegations, this claim should be dismissed. D. Inducing Breach of Contract “To state a claim for inducing breach of contract, [the plaintiff] must allege (1) existence of a valid contract; (2) defendant’s intent to induce a breach of the contract; and (3) a breach resulting from defendant’s unjustifiable or wrongful conduct.” Metal Lite, Inc. v. Brady Const. Innovations, Inc., 558 F. Supp. 2d 1084, 1094 (C.D. Cal. 2007). Here, Plaintiffs’ claim for inducing breach of contract (twelfth cause of action) fail to sufficiently Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 32 of 35 Page ID #:568 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE allege how the Valeant Defendants had an intent to induce the breach of contract formed between Plaintiffs and Anadolu Tip, and how the breach resulted from the Valeant Defendants’ conduct. Merely alleging that the Valeant Defendants entered into an agreement with Anadolu Tip is conclusory and insufficient. As such, this claim should be dismissed with prejudice. X. CONCLUSION The Valeant Defendants respectfully request the Court dismiss Valeant Ireland and Bausch & Lomb Saglik as parties to this action due to the lack of personal jurisdiction. Moreover, Plaintiffs fail to allege facts sufficient to state a claim for relief against the Valeant Defendants. Based on the foregoing, the Valeant Defendants request the Court grant this Renewed Motion to Dismiss. Dated: March 8, 2017 Respectfully submitted, SHOOK, HARDY & BACON L.L.P. By: Douglas W. Robinson Gary Miller Tony M. Diab Mayela C. Montenegro Attorneys for Defendant Valeant Pharmaceuticals International, Inc., Bausch & Lomb Incorporated, Valeant Holdings Ireland, and Bausch & Lomb Saglik ve Optik Urunleri Tic. A.S. /s/ Tony M. Diab Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 33 of 35 Page ID #:569 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 5 Park Plaza, Suite 1600, Irvine, California 92614. On March 8, 2017, I served on the interested parties in said action the within: DEFENDANTS VALEANT PHARMACEUTICALS INTERNATIONAL, INC., VALEANT HOLDINGS IRELAND, BAUSCH & LOMB INCORPORATED, AND BAUSCH & LOMB SAGLIK VE OPTIK URUNLERI TIC A.S.’S NOTICE OF RENEWED MOTION AND RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES by placing a true copy thereof in a sealed envelope(s) addressed as stated on the attached mailing list. (MAIL) I am readily familiar with this firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. (HAND DELIVERY) By placing a true and correct copy of the above document(s) in a sealed envelope addressed as indicated above and causing such envelope(s) to be delivered by hand to the addressee(s) designated. (BY FEDERAL EXPRESS, AN OVERNIGHT DELIVERY SERVICE) By placing a true and correct copy of the above document(s) in a sealed envelope addressed as indicated above and causing such envelope(s) to be delivered to the FEDERAL EXPRESS Service Center, and to be delivered by their next business day delivery service to the addressee designated. (ELECTRONIC FILING) I provided the document(s) listed above electronically through the CM/ECF system pursuant to the instructions set forth in the Local Rules for the United States District Court for the Central District of California. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed on March 8, 2017, at Irvine, California. Tony M. Diab /s/ Tony M. Diab (Type or print name) (Signature) Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 34 of 35 Page ID #:570 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27 DEFENDANTS’ RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Case No: 8:16-CV-01321-JLS-KE SERVICE LIST David Young, Esq. LAW OFFICES OF DAVID YOUNG 11845 West Olympic Boulevard, Suite 1110 Los Angeles, CA 90064 Tel: 310-575-0308 Fax: 310-575-0311 dyounglaw@verizon.net Attorneys for Plaintiffs Case 8:16-cv-01321-JLS-KES Document 52 Filed 03/08/17 Page 35 of 35 Page ID #:571 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECL. OF TONY M. DIAB IN SUPPORT OF DEFENDANTS’ RENEWED MOTION TO DISMISS Case No: 8:16-CV-01321-JLS-KES Douglas W. Robinson (SBN: 255909) dwrobinson@shb.com Tony M. Diab (SBN: 277343) tdiab@shb.com Mayela C. Montenegro (SBN: 304471) mmontenegro@shb.com SHOOK, HARDY & BACON L.L.P. Jamboree Center 5 Park Plaza, Suite 1600 Irvine, California 92614 Telephone: 949-475-1500 Facsimile: 949-475-0016 Gary Miller (Pro Hac Vice) gmiller@shb.com SHOOK, HARDY & BACON L.L.P. 111 S. Wacker Drive, Suite 5100 Chicago, Illinois 60606 Telephone: 312-704-7700 Facsimile: 312-558-1195 Attorneys for Defendants Valeant Pharmaceuticals International, Inc., Valeant Holdings Ireland, Bausch & Lomb Incorporated, and Bausch & Lomb Saglik ve Optik Urunleri Tic. A.S. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION ICONLAB INC., a California corporation, ICON LAB GmbH, a German corporation, REPER-NN, CO. LTD, a Russian corporation, Plaintiffs, v. VALEANT PHARMACEUTICALS INTERNATIONAL, INC., a Delaware corporation; VALEANT HOLDINGS IRELAND, an Irish corporation; BAUSCH & LOMB INCORPORATED, a New York corporation; BAUSCH & LOMG SAGLIK ve OPTIK URUNLERI TIC. A.S., a Turkish corporation; ANADOLU TIP TEKNOLOJILERI URETIM PAZARLAMA ITHALAT IHRACAT TICARET ve SANAYI ANONIM SIRKETI, a Turkish corporation, AND DOES 1-20, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 8:16-cv-01321-JLS-KES DECLARATION OF TONY M. DIAB IN SUPPORT OF DEFENDANTS VALEANT PHARMACEUTICALS INTERNATIONAL, INC., VALEANT HOLDINGS IRELAND, BAUSCH & LOMB INCORPORATED, AND BAUSCH & LOMB SAGLIK VE OPTIK URUNLERI TIC A.S.’S RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT [Filed concurrently with Renewed Motion to Dismiss and [Proposed] Order] Date: April 21, 2017 Time: 2:30 p.m. Ctrm: 10A Judge: Hon. Josephine L. Staton 387156 Case 8:16-cv-01321-JLS-KES Document 52-1 Filed 03/08/17 Page 1 of 5 Page ID #:572 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DECL. OF TONY M. DIAB IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Case No: 8:16-CV-01321-JLS-KE I, Tony M. Diab, declare that: 1. The following statements are within my personal knowledge and if sworn as a witness, I could and would testify competently hereto. 2. I am an attorney at law duly licensed to practice in all courts of the State of California and am admitted to practice before the United States District Court for the Central District of California. I am an associate at Shook, Hardy & Bacon L.L.P., attorneys for defendants Valeant Pharmaceuticals International, Inc., Valeant Holdings Ireland, Bausch & Lomb Incorporated, and Bausch & Lomb Saglik ve Optik Urunleri Tic. A.S. (collectively, “Valeant Defendants”) in this action. 3. In August 2016, the Valeant Defendants filed a motion to dismiss Plaintiffs’ complaint, which was fully briefed by the parties. (ECF Nos. 25, 27, 33, 34.) On October 25, 2016, this Court issued an order granting Plaintiffs’ request for jurisdictional discovery, and denied as moot, without prejudice, Defendants’ motions to dismiss. (ECF No. 36.) This Court also granted leave to amend the complaint. (Id.) 4. On November 21, 2016, Plaintiffs served each of the Valeant Defendants with a set of 25 interrogatories, 40 requests for production, and 88 requests for admission. The Valeant Defendants agreed not to challenge personal jurisdiction over defendants Valeant Pharmaceuticals International, Inc. and Bausch & Lomb Incorporated. As such, only defendants Valeant Holdings Ireland and Bausch & Lomb Saglik ve Optik Urunleri Tic. A.S. responded to the discovery requests. On February 15, 2017, after the completion of jurisdictional discovery, Plaintiffs filed the operative First Amended Complaint. (ECF No. 47.) 5. On February 28, 2017, I met and conferred with counsel for plaintiffs via telephone regarding the Valeant Defendants’ intent to file a motion to dismiss Plaintiffs’ First Amended Complaint. The parties were unable to reach an amicable resolution to the dispute surrounding plaintiffs’ First Amended Complaint, and the Valeant Defendants decided to proceed with their motion. At the conclusion of the telephonic meet and confer, Case 8:16-cv-01321-JLS-KES Document 52-1 Filed 03/08/17 Page 2 of 5 Page ID #:573 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 DECL. OF TONY M. DIAB IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Case No: 8:16-CV-01321-JLS-KE the parties agreed that they had met their obligation, in good faith, to meet and confer under Local Rule 7-3. 6. In support of its Motion to Dismiss, a true and correct copy of relevant excerpts of Valeant Holdings Ireland’s Responses to Plaintiffs’ Special Jurisdictional Interrogatories (Set One) and verification thereto, is attached hereto as Exhibit A. 7. A true and correct copy of relevant excerpts of Bausch & Lomb Saglik ve Optik Urunleri Tic. A.S.’s Responses to Plaintiffs’ Special Jurisdictional Interrogatories (Set One) and verification thereto, is attached hereto as Exhibit B. 8. A true and correct copy of the Declaration of Pamela Lewis, previously filed on August 15, 2016, in support of Valeant Defendants’ motion to dismiss for lack of personal jurisdiction (ECF No. 25-1), is attached hereto as Exhibit C. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed this 8th day of March, 2017, at Irvine, California. ________________________________ Tony M. Diab /s/ Tony M. Diab Case 8:16-cv-01321-JLS-KES Document 52-1 Filed 03/08/17 Page 3 of 5 Page ID #:574 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 DECL. OF TONY M. DIAB IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Case No: 8:16-CV-01321-JLS-KE PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 5 Park Plaza, Suite 1600, Irvine, California 92614. On March 8, 2017, I served on the interested parties in said action the within: DECLARATION OF TONY M. DIAB IN SUPPORT OF DEFENDANTS VALEANT PHARMACEUTICALS INTERNATIONAL, INC., VALEANT HOLDINGS IRELAND, BAUSCH & LOMB INCORPORATED, AND BAUSCH & LOMB SAGLIK VE OPTIK URUNLERI TIC A.S.’S RENEWED MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT by placing a true copy thereof in a sealed envelope(s) addressed as stated on the attached mailing list. (MAIL) I am readily familiar with this firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. (HAND DELIVERY) By placing a true and correct copy of the above document(s) in a sealed envelope addressed as indicated above and causing such envelope(s) to be delivered by hand to the addressee(s) designated. (BY FEDERAL EXPRESS, AN OVERNIGHT DELIVERY SERVICE) By placing a true and correct copy of the above document(s) in a sealed envelope addressed as indicated above and causing such envelope(s) to be delivered to the FEDERAL EXPRESS Service Center, and to be delivered by their next business day delivery service to the addressee designated. (ELECTRONIC FILING) I provided the document(s) listed above electronically through the CM/ECF system pursuant to the instructions set forth in the Local Rules for the United States District Court for the Central District of California. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed on March 8, 2017, at Irvine, California. Tony M. Diab /s/ Tony M. Diab (Type or print name) (Signature) Case 8:16-cv-01321-JLS-KES Document 52-1 Filed 03/08/17 Page 4 of 5 Page ID #:575 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DECL. OF TONY M. DIAB IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS Case No: 8:16-CV-01321-JLS-KE SERVICE LIST David Young, Esq. LAW OFFICES OF DAVID YOUNG 11845 West Olympic Boulevard, Suite 1110 Los Angeles, CA 90064 Tel: 310-575-0308 Fax: 310-575-0311 dyounglaw@verizon.net Attorneys for Plaintiffs Case 8:16-cv-01321-JLS-KES Document 52-1 Filed 03/08/17 Page 5 of 5 Page ID #:576 EXHIBIT A Case 8:16-cv-01321-JLS-KES Document 52-2 Filed 03/08/17 Page 1 of 8 Page ID #:577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Douglas W. Robinson (SBN: 255909) dwrcibinson@ shb.com Tony M. Diab (SBN: 277343) tdiab@shb.com Mayela C. Montenegro (SBN: 304471) mmontenegro@shb.com SHOOK, HARDY & BACON L.L.P. Jamboree Center 5 Park Plaza, Suite 1600 Irvine, California 92614 Telephone: 949-475-1500 Facsimile: 949-475-0016 Gary Miller (Pro Hac Vice) gmi ler@shb.com SHOOK, HARDY & BACON L.L.P. 111 S. Wacker Drive, Suite 5100 Chicago, Illinois 60606 Telephone: 312-704-7700 Facsimile: 312-558-1195 Attorneys for Defendants Valeant Pharmaceuticals International, Inc., Bausch & Lomb Incorporated, Valeant Holdings Ireland, and Bausch & Lomb Saglik ye Optik Urunleri Tic. A.S. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA — SOUTHERN DIVISION VALEANT PHARMACEUTICALS ) INTERNATIONAL, INC., a Delaware ,) corporation; VALEANT HOLDINGS ) IRELAND, an Irish corporation; ) BAUSCH & LOMB INCORPORATED, ) a New York corporation; BAUSCH & LOMG SAGLIK ye OPTIK URUNLERI ) TIC. A.S., a Turkish corporation; ) ANADOLU TIP lEKNOLOJILERI URETIM PAZARLAMA ITHALAT IHRACAT TICARET ye SANAYI ANONIM SIRKETI, a Turkish corporation, AND DOES 1-20, inclusive, ) Defendants. ) ) ICONLAB INC a California corporation, ICON LAB GmbH, a German corporation, REPER-NN, CO. LTD, a Russian corporation, Plaintiffs, v. Case No. 8:16-cv-01321-JLS-KES Judge: Hon. Josephine L. Staton DEFENDANT VALEANT HOLDINGS IRELAND'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) DEFENDANT VALEANT HOLDINGS IRELAND'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) Case No: 8:16-CV-01321-JLS-KES 360066 vi o s . EANT PHARMACEUTICALS I L, INC., a Delaware ration; VALEANT HOLDINGS I T v ) Case No. 8:16-cv-013 - ) ) ) ) DEFENDA ,) S ,) S I INTERROGAT I ( ) ) ) ) ) ) ) nu l r t , lea t l i v i i . . . I I ' l ' T I S (S T E) Exhibit A 4 Case 8:16-cv-01321-JLS-KES Document 52-2 Filed 03/08/17 Page 2 of 8 Page ID #:578 also seeks the confidential and personal information of individuals, which is protected by the right to privacy. INTERROGATORY NO.2: Please state the nature of the business of Valeant Ireland. RESPONSE TO INTERROGATORY NO.2: Valeant Ireland objects to this Interrogatory on the grounds that it is vague and ambiguous, particularly in its use of the term "nature." Without waiving its objections, Valeant Ireland's business involves pharmaceutical and medical devices. INTERROGATORY NO.3: Where was Valeant Ireland incorporated and/or registered? RESPONSE TO INTERROGATORY NO.3: Valeant Ireland objects to this Interrogatory on the grounds that it is unduly burdensome and overly broad. Without waiving its objections, Valeant Ireland was incorporated in Ireland. INTERROGATORY NO.4: When was Valeant Ireland incorporated and/or registered? RESPONSE TO INTERROGATORY NO.4: Valeant Ireland objects to this Interrogatory on the grounds that it is unduly burdensome and overly broad. Without waiving its objections, Valeant Ireland was incorporated on December 4, 2013. INTERROGATORY NO. 5: Does Valeant Ireland conduct business in the State of California? 6 DEFENDANT VALEANT HOLDINGS IRELAND'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) Case No: 8:16-CV-01321-ILS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 als se s t i l , i is rotected l t l . al t Ir l t t it is e and i . it t aiving its j ti , ti l e ical devices. r t . l t l t t it is duly burde s , l t Ir la as . l t Ir l t t it is ly burde s l , l t Ir l as l lif r i ' I ' I ( E) J Exhibit A 5 Case 8:16-cv-01321-JLS-KES Document 52-2 Filed 03/08/17 Page 3 of 8 Page ID #:579 1 RESPONSE TO INTERROGATORY NO. 5: 2 Valeant Ireland objects to this Interrogatory on the grounds that it is vague and 3 ambiguous, particularly in its use of the term "conduct." It is also unduly burdensome 4 and overly broad as to time and scope. Without waiving its objections, Valeant 5 Ireland does not conduct business of any kind in the State of California. 6 INTERROGATORY NO.6: Please state the name of Valeant Ireland's parent, and of all subsidiaries, affiliates, partnerships, entities, or agents that Valeant Ireland owns or controls, in whole or in part, that are conducting business in the State of California. RESPONSE TO INTERROGATORY NO.6: Valeant Ireland objects to this Interrogatory on the grounds that it is vague and ambiguous, particularly in its use of the term "conducting." It is also unduly burdensome, oppressive, and overly broad as to time and scope, particularly in its use of the phrase "parent, and of all subsidiaries, affiliates, partnerships, entities, or agents that Valeant Ireland owns or controls, in whole or in part." For example, it seeks information about entities having no connection to this lawsuit. Without waiving its objections, Valeant Ireland is a wholly owned subsidiary of Valeant International Luxembourg, and parent of Bausch & Lomb Saglik ye Optik Urunleri Tic. A.S. As of the filing of this lawsuit, none of these entities are conducting business in the State of California. INTERROGATORY NO. 7: Describe the relationship between Valeant Ireland, its parent, and/or its subsidiaries, affiliates, partnerships, entities, or agents that are parties to this litigation, including, but not limited to, corporate ownership, management, financial reporting, and sales and marketing efforts. 7 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT VALEANT HOLDINGS IRELAND'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) Case No: 8:16-CV-01321-JLS-KES i ti , l t , i i . it i l i it , t t li v ti it t i liti ti , ti , ' I TERR I ( ) Exhibit A 6 Case 8:16-cv-01321-JLS-KES Document 52-2 Filed 03/08/17 Page 4 of 8 Page ID #:580 RESPONSE TO INTERROGATORY NO. 25: Valeant Ireland objects to this Interrogatory on the grounds that it is vague and ambiguous, particularly in its use of the phrase "internal operating procedures." It is also unduly burdensome, oppressive, and overly broad as to time and scope, particularly in its use of the phrase "subsidiaries, affiliates, partnerships, other entities, or agents, that Valeant Ireland owns or controls, in whole or in part." For example, it seeks information about entities from throughout the world having no connection to this lawsuit. In fact, it does not reference the jurisdiction of California or set any limit related to the jurisdiction at all. Further, this Interrogatory seeks information that is neither relevant to whether this Court has jurisdiction over Valeant Ireland, nor reasonably calculated to lead to the discovery of admissible evidence as it concerns jurisdiction in this case, as it fails to reference any connection to the State of California. Dated: January 23, 2017 Respectfully submitted, SHOOK, HARDY & BACON L.L.P. By: /../ Douglas W. Robinson Gary Miller Tony M. Diab Mayela C. Montenegro Attorneys for Defendants Valeant Pharmaceuticals International, Inc., Bausch & Lomb Incorporated, Valeant Holdings Ireland, and Bausch & Lomb Saglik ye Optik Urunleri Tic. A.S. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT VALEANT HOLDINGS IRELAND'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) Case No: 8:16-CV-01321-JES-KES 22 . al t Ir l t t it is ague and a bi s, rti ti r ce ures." It is als l t ti sc pe, partic larl i it , t r i s, ther entities, or agents, t at l t l t. r le, it see s i f r l i o connection to this la s it. I f t, lif r i r set any li it relate t t j i i f r ation that is neit er r l t t l t Ireland, nor reas a l l l t l i as it concerns j ris i ti i ti t t e tate of . . . '72) , ., . ' I I ' I ( E) L Exhibit A 7 Case 8:16-cv-01321-JLS-KES Document 52-2 Filed 03/08/17 Page 5 of 8 Page ID #:581 PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 5 Park Plaza, Suite 1600, Irvine, California 92614. On January 23, 2017 I served on the interested parties in said action the within: DEFENDANT VALEANT HOLDINGS IRELAND'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) by placing a true copy thereof in a sealed envelope(s) addressed as stated on the attached mailing list. (MAIL) I am readily familiar with this firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. El (E-MAIL) I caused such document(s) to be served via email on the interested parties at their e-mail addresses listed. ❑ (FAX) I caused such document(s) to be served via facsimile on the interested parties at their facsimile numbers listed above. The facsimile numbers used complied with California Rules of Court, Rule 2003, and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), I caused the machine to print a report of the transmission, a copy of which is attached to the original of this declaration. ❑ (HAND DELIVERY) By placing a true and correct copy of the above document(s) in a sealed envelope addressed as indicated above and causing such envelope(s) to be delivered by hand to the addressee(s) designated. ❑ (BY FEDERAL EXPRESS, AN OVERNIGHT DELIVERY SERVICE) By placing a true and correct copy of the above document(s) in a sealed envelope addressed as indicated above and causing such envelope(s) to be delivered to the FEDERAL EXPRESS Service Center, and to be delivered by their next business day delivery service to the addressee designated. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 23, 2017, at Irvine, California. Rose Featherstone <245:)12_,:::ea.,‘„Aise,Criestoz (Type or print name) (Signature) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 365427 vl I a e l i t . r t e a e of 18 and not a part t t it i l , ite 00, Irvine, n Januar , ti t it i : I I ' I ( ) by placin a tr t t t t e attached ( I ) I a r il ti r cessing correspon e f r ili it it t e . . postal service on that s i t t tion of party served, service is r t t r ate is ore t it. Z I ) I ca s i t r t arties at their 0 (F ) I ca se s i t r st arties at their facsi ile r li t li it alifornia ules of ourt, le , t t alifornia ules of ourt, ule ( ), I t i si , a copy of hich i ti . 0 ( I ) e t(s) in a sealed envelope address i i t li ered by hand to 0 (B FE , l i a true and correct copy f t i i ate above and causing suc e l t r i e enter, and to be deli er t i r ss esignated. I declare u er lt li r i t at the t i . CO: -25:ea412.61.0%6FYL2 Exhibit A 8 Case 8:16-cv-01321-JLS-KES Document 52-2 Filed 03/08/17 Page 6 of 8 Page ID #:582 SERVICE LIST Orange County Superior Court Iconlab, Inc., et al v. Valeant Pharmaceuticals,etc,. et al. Case No: 30-2016-00856513-CU-BC-CJC David Young, Esq. LAW OFFICES OF DAVID YOUNG 11845 West Olympic Boulevard, Suite 1110 Los Angeles, CA 90064 Tel: 310-575-0308 Fax: 310-575-0311 dyounglaw @verizon.net Attorneys for Plaintiffs 2 3 4 5 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 365427 vl I l , ., , t ,. t l. i 1 8 Exhibit A 9 Case 8:16-cv-01321-JLS-KES Document 52-2 Filed 03/08/17 Page 7 of 8 Page ID #:583 VERIFICATION I, Pamela Lewis, declare: I am a corporate paralegal in the Law Department of Valeant Pharmaceuticals International, Inc. in the above-entitled action. I have read the following documents involving Valeant Holdings Ireland: 1. DEFENDANT VALEANT HOLDINGS IRELAND'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) 2. DEFENDANT VALEANT HOLDINGS IRELAND'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) 3. DEFENDANT VALEANT HOLDINGS IRELAND'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL REQUESTS FOR ADMISSION (SET ONE) I am informed and believe that the matters stated therein are true and correct. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed on this 24th day of January, 2017, in Irvine, California. A/g-- Pamela Lewis 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 365397 vl Exhibit A 10 Case 8:16-cv-01321-JLS-KES Document 52-2 Filed 03/08/17 Page 8 of 8 Page ID #:584 EXHIBIT B Case 8:16-cv-01321-JLS-KES Document 52-3 Filed 03/08/17 Page 1 of 8 Page ID #:585 Douglas W. Robinson (SBN: 255909) dwrobinson@shb.com Tony M. Diab (SBN: 277343) tdiab@shb.com Mayela C. Montenegro (SBN: 304471) mmontenegro@shb.com SHOOK, HARDY & BACON L.L.P. Jamboree Center 5 Park Plaza, Suite 1600 Irvine, California 92614 Telephone: 949-475-1500 Facsimile: 949-475-0016 Gary Miller (Pro Hac Vice) gmiller@shb.com SHOOK, HARDY & BACON L.L.P. 111 S. Wacker Drive, Suite 5100 Chicago, Illinois 60606 Telephone: 312-704-7700 Facsimile: 312-558-1195 ICONLAB INC., a California corporation, ICON LAB GmbH, a German corporation, REPER-NN, CO. LTD, a Russian corporation, Plaintiffs, v. VALEANT PHARMACEUTICALS INTERNATIONAL, INC., a Delaware corporation; VALEANT HOLDINGS IRELAND, an Irish corporation; BAUSCH & LOMB INCORPORATED, a New York corporation; BAUSCH & LOMG SAGLIK ye OPTIK URUNLERI TIC. A.S., a Turkish corporation; ANADOLU TIP TEKNOLOJILERI URETIM PAZARLAMA ITHALAT IHRACAT TICARET ve SANAYI ANONIM SIRKETI, a Turkish corporation, AND DOES 1-20, inclusive, Case No. 8:16-cv-01321-JLS-KES Judge: Hon. Josephine L. Staton DEFENDANT BAUSCH & LOMB SAGLIK VE OPTIK URUNLERI TIC. A.S.'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) Attorneys for Defendants Valeant Pharmaceuticals International, Inc., Bausch & Lomb Incorporated, Valeant Holdings Ireland, and Bausch & Lomb Saglik ye Optik Urunleri Tic. A.S. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA — SOUTHERN DIVISION Defendants. DEFENDANT B&L SAGLIK VE OPTIK URUNLERI TIC. A.S.'S RESPONSES TO 360037 vl PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) Case No: 8:16-CV-01321-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sh corporati i Exhibit B 11 Case 8:16-cv-01321-JLS-KES Document 52-3 Filed 03/08/17 Page 2 of 8 Page ID #:586 there is no reference at all to California in the Interrogatory. This Interrogatory also seeks the confidential and personal information of individuals, which is protected by the right to privacy. INTERROGATORY NO.2: Please state the nature of the business of B&L Saglik. RESPONSE TO INTERROGATORY NO.2: B&L Saglik objects to this Interrogatory on the grounds that it is vague and ambiguous, particularly in its use of the term "nature." Without waiving its objections, B&L Saglik's business involves pharmaceutical and medical devices. INTERROGATORY NO.3: Where was B&L Saglik incorporated and/or registered? RESPONSE TO INTERROGATORY NO.3: B&L Saglik objects to this Interrogatory on the grounds that it is unduly burdensome and overly broad. Without waiving its objections, B&L Saglik was incorporated in Turkey. INTERROGATORY NO.4: When was B&L Saglik incorporated and/or registered? RESPONSE TO INTERROGATORY NO.4: B&L Saglik objects to this Interrogatory on the grounds that it is unduly burdensome and overly broad. Without waiving its objections, B&L Saglik was incorporated on April 1, 1992. INTERROGATORY NO. 5: Does B&L Saglik conduct business in the State of California? 6 DEFENDANT B&L SAGLIK VE OPlIK URUNLERI TIC. A.S.'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) Case No: 8:16-CV-01321-JLS-ICES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TI I . . ' TER I - 321-JLS-K Exhibit B 12 Case 8:16-cv-01321-JLS-KES Document 52-3 Filed 03/08/17 Page 3 of 8 Page ID #:587 1 RESPONSE TO INTERROGATORY NO. 5: 2 B&L Saglik objects to this Interrogatory on the grounds that it is vague and 3 ambiguous, particularly in its use of the term "conduct." It is also unduly burdensome 4 and overly broad as to time and scope. Without waiving its objections, B&L Saglik 5 does not conduct business of any kind in the State of California. 6 7 INTERROGATORY NO.6: 8 Please state the name of B&L Saglik's parent, and of all subsidiaries, affiliates, 9 partnerships, entities, or agents that B&L Saglik owns or controls, in whole or in part, 10 that are conducting business in the State of California. 11 RESPONSE TO INTERROGATORY NO.6: 12 B&L Saglik objects to this Interrogatory on the grounds that it is vague and 13 ambiguous, particularly in its use of the term "conducting." It is also unduly 14 burdensome, oppressive, and overly broad as to time and scope, particularly in its use 15 of the phrase "parent, and of all subsidiaries, affiliates, partnerships, entities, or agents 16 that B&L Saglik owns or controls, in whole or in part." For example, it seeks 17 information about entities having no connection to this lawsuit. 18 Without waiving its objections, B&L Saglik is a wholly owned subsidiary of 19 Valeant Holdings Ireland. As of the filing of this lawsuit, neither of these entities are 20 conducting business in the State of California. 21 22 INTERROGATORY NO. 7: 23 Describe the relationship between B&L Saglik, its parent, and/or its 24 subsidiaries, affiliates, partnerships, entities, or agents that are parties to this litigation, 25 including, but not limited to, corporate ownership, management, financial reporting, 26 and sales and marketing efforts. 27 28 7 DEFENDANT B&L SAGLIK VE OPTIK URUNLERI TIC. A.S.'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) Case No: 8:16-CV-01321-JLS-KES Exhibit B 13 Case 8:16-cv-01321-JLS-KES Document 52-3 Filed 03/08/17 Page 4 of 8 Page ID #:588 particularly in its use of the phrase "subsidiaries, affiliates, partnerships, other entities, or agents, that B&L Saglik owns or controls, in whole or in part." For example, it seeks information about entities from throughout the world having no connection to this lawsuit. In fact, it does not reference the jurisdiction of California or set any limit related to the jurisdiction at all. Further, this Interrogatory seeks information that is neither relevant to whether this Court has jurisdiction over B&L Saglik, nor reasonably calculated to lead to the discovery of admissible evidence as it concerns jurisdiction in this case, as it fails to reference any connection to the State of California. Dated: January 23, 2017 Respectfully submitted, SHOOK, HARDY & BACON L.L.P. By: Douglas W. Robinson Gary Miller Tony M. Diab Mayela C. Montenegro Attorneys for Defendants Valeant Pharmaceuticals International, Inc., Bausch & Lomb Incorporated, Valeant Holdings Ireland, and Bausch & Lomb Saglik ve Optik Urunleri Tic. A.S. 22 DEFENDANT B&L SAGLIK VE OPTIK URUNLERI TIC. A.S.'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) Case No: 8:16-CV-01321-JLS-KES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I I ) Exhibit B 14 Case 8:16-cv-01321-JLS-KES Document 52-3 Filed 03/08/17 Page 5 of 8 Page ID #:589 PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 5 Park Plaza, Suite 1600, Irvine, California 92614. On January 23, 2017 I served on the interested parties in said action the within: DEFENDANT BAUSCH & LOMB SAGLIK VE OPTIK URUNLERI TIC. A.S.'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) by placing a true copy thereof in a sealed envelope(s) addressed as stated on the attached mailing list. • (MAIL) I am readily familiar with this firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. • (E-MAIL) I caused such document(s) to be served via email on the interested parties at their e-mail addresses listed. ❑ (FAX) I caused such document(s) to be served via facsimile on the interested parties at their facsimile numbers listed above. The facsimile numbers used complied with California Rules of Court, Rule 2003, and no error was reported by the machine Pursuant to California Rules of Court, Rule 2006(d), I caused the machine to print a report of the transmission, a copy of which is attached to the original of this declaration. ❑ (HAND DELIVERY) By placing a true and correct copy of the above document(s) in a sealed envelope addressed as indicated above and causing such envelope(s) to be delivered by hand to the addressee(s) designated. ❑ (BY FEDERAL EXPRESS, AN OVERNIGHT DELIVERY SERVICE) By placing a true and correct copy of the above document(s) in a sealed envelope addressed as indicated above and causing such envelope(s) to be delivered to the FEDERAL EXPRESS Service Center, and to be delivered by their next business day delivery service to the addressee designated. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 23, 2017, at Irvine, California. Rose Featherstone (Type or print name) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Signature) 365427 vl Z Z rt t ac ine. Exhibit B 15 Case 8:16-cv-01321-JLS-KES Document 52-3 Filed 03/08/17 Page 6 of 8 Page ID #:590 SERVICE LIST Orange County Superior Court Iconlab, Inc., et al v. Valeant Pharmaceuticals,etc,. et al. Case No: 30-2016-00856513-CU-BC-CJC David Young, Esq. LAW OFFICES OF DAVID YOUNG 11845 West Olympic Boulevard, Suite 1110 Los Angeles, CA 90064 Tel: 310-575-0308 Fax: 310-575-0311 dyounglaw@verizon.net Attorneys for Plaintiffs 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 365427 vl Exhibit B 16 Case 8:16-cv-01321-JLS-KES Document 52-3 Filed 03/08/17 Page 7 of 8 Page ID #:591 VERIFICATION I, Pamela Lewis, declare: I am a corporate paralegal in the Law Department of Valeant Pharmaceuticals International, Inc. in the above-entitled action. I have read the following documents which regard B&L Saglik Ve Optik Urunleri Tic A.S.: 1 2 3 4 5 6 1. DEFENDANT B&L SAGLIK VE OPTIK URUNLERI TIC A.S.'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL REQUESTS FOR PRODUCTION OF DOCUMENTS (SET ONE) 2. DEFENDANT B&L SAGLIK VE OPTIK URUNLERI TIC A.S.'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL INTERROGATORIES (SET ONE) 3. DEFENDANT B&L SAGLIK VE OPTIK URUNLERI TIC A.S.'S RESPONSES TO PLAINTIFFS' SPECIAL JURISDICTIONAL REQUESTS FOR ADMISSION (SET ONE) I am informed and believe that the matters stated therein are true and correct. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed on this 24th day of January, 2017, in Irvine, California. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Pamela Lewis 23 24 25 26 27 28 365398 vl Exhibit B 17 Case 8:16-cv-01321-JLS-KES Document 52-3 Filed 03/08/17 Page 8 of 8 Page ID #:592 EXHIBIT C Case 8:16-cv-01321-JLS-KES Document 52-4 Filed 03/08/17 Page 1 of 5 Page ID #:593 Doug W. Robinson (SBN: 255909) dwrobinson shb.com Tony M. Dia (SBN: 277343) tdiab@shb.com Maye a C. Montenegro (SBN: 304471) mmontenegro@shb.com SHOOK, HARDY & BACON L.L.P. Jamboree Center 5 Park Plaza, Suite 1600 Irvine, California 92614 Telephone: 949-475-1500 Facsimile: 949-475-0016 Gary Miller (pro hac vice forthcoming) gmiller@shb.com SHOOK, HARDY & BACON L.L.P. 111 S. Wacker Drive, Suite 5100 Chicago, Illinois 60606 Telephone: 312-704-7700 Facsimile: 312-558-1195 Attorneys for Defendant Valeant Pharmaceuticals International, Inc. ICONLAB INC., a California corporation, ICON LAB GmbH, a German corporation, REPER-NN, CO. LTD, a Russian corporation, ) ) ) ) ) Plaintiffs, ) ) v. ) ) VALEANT PHARMACEUTICALS ) INTERNATIONAL, INC., a Delaware ) corporation; VALEANT HOLDINGS IRELAND, an Irish corporation; BAUSCH ) & LOMB INCORPORATED, a New York ) ) corporation; BAUSCH & LOMG SAGLIK ye OPTIK URUNLERI TIC. A.S., a Turkish ) corporation; ANADOLU TIP ) TEKNOLOJILERI URETIM ) PAZARLAMA ITHALAT IHRACAT ) TICARET ve SANAYI ANONIM ) SIRKETI, a Turkish corporation, AND ) DOES 1-20, inclusive, ) ) Defendants. ) Case No. 8:16-cv-01321-JLS-KES DECLARATION OF PAMELA LEWIS IN SUPPORT OF DEFENDANTS VALEANT PHARMACEUTICALS INTERNATIONAL, INC., BAUSCH & LOMB INCORPORATED, VALEANT HOLDINGS IRELAND, AND BAUSCH & LOMB SAGLIK VE OPTIK URUNLERI TIC A.S.,'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION [Filed concurrently with Notice of Motion and Motion to Dismiss; Memorandum of Points and Authorities; and [Proposed] Order] Date: September 23, 2016 Time: 2:30 p.m. Ctrm: I OA Judge: Hon. Josephine L. Staton 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA — SOUTHERN DIVISION 338425 v2 DECL. OF PAMELA LEWIS IN SUPPORT OF MOTION TO DISMISS 8:16-CV-01321-MS-KES Exhibit C 18 Case 8:16-cv-01321-JLS-KES Document 52-4 Filed 03/08/17 Page 2 of 5 Page ID #:594 1 I, Pamela Lewis, declare that: 2 1. I am a corporate paralegal for Defendants Valeant Pharmaceuticals 3 International, Inc. ("Valeant") and Bausch & Lomb Incorporated ("Bausch & Lomb"). I am 4 familiar with the operations and functions of related entities Valeant Holdings Ireland 5 ("Valeant Holdings") and Bausch & Lomb Saglik ye Optik Urunleritic A.S. ("Bausch & 6 Lomb Saglik"), also defendants in the above-captioned action. I have personal knowledge of 7 all the facts attested to in this declaration and could competently testify thereto if called as a 8 witness in this proceeding. 9 2. Valeant is incorporated in the Province of British Columbia, Canada and has 10 its principal place of business in the State of New Jersey, therefore it is not a citizen of 11 California. 12 3. The three agreements at issue involving Plaintiffs do not involve Valeant as 13 Valeant is not even mentioned in the agreements. The three agreements were also executed 14 outside of California. 15 4. Valeant did not negotiate or execute its agreements with Anadolu Tip in 16 California. 17 5. The agreements between Valeant and Anadolu Tip do not involve products 18 sold or marketed in California, nor services performed in California. 19 6. The agreements between Valeant and Anadolu Tip do not mention or involve 20 Plaintiffs. 21 7. Valeant did not engage in any communications with Plaintiffs regarding the 22 subject intellectual property, the three agreements involving Plaintiffs, or the agreements 23 between Valeant and Anadolu Tip. 24 8. Valeant was not aware of Plaintiffs, the subject intellectual property, or 25 Plaintiffs' agreements with Anadolu Tip. 26 27 28 2 DECL. OF PAMELA LEWIS IN SUPPORT OF MOTION TO DISMISS 8:16-CV-01321-JLS-KES Exhibit C 19 Case 8:16-cv-01321-JLS-KES Document 52-4 Filed 03/08/17 Page 3 of 5 Page ID #:595 9. Bausch & Lomb Incorporated ("Bausch & Lomb") is incorporated in the State of New York and has its principal place of business in the State of New Jersey, therefore it is not a citizen of California. 10. The three agreements at issue involving Plaintiffs do not involve Bausch & Lomb as Bausch & Lomb is not even mentioned in the agreements. The three agreements were also executed outside of California. I I. Bausch & Lomb did not negotiate or execute any agreements with any party in this action. 12. Bausch & Lomb did not engage in any communications with any party in this action regarding Plaintiffs, the subject intellectual property, the three agreements involving Plaintiffs, or the agreements between Valeant and Anadolu Tip. 13. Bausch & Lomb was not aware of Plaintiffs, the subject intellectual property, or Plaintiffs' agreements with Anadolu Tip. 14. Valeant Holdings is incorporated in Ireland and has its principal place of business in Dublin, Ireland, and therefore it is not a citizen of California. 15. Valeant Holdings maintains no offices or employees in California. 16. Valeant Holdings has no sales operations or customers in California. 17. Valeant Holdings does not market its products or direct its sales towards California. 18. The three agreements at issue involving Plaintiffs were executed outside of California. 19. Valeant Holdings did not negotiate or execute its agreements with Anadolu Tip in California. 20. The agreements entered into by Valeant Holdings do not involve products sold or marketed in California, nor services performed in California. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECL. OF PAMELA LEWIS IN SUPPORT OF MOTION TO DISMISS 8:16-CV-01321-JLS-KES Exhibit C 20 Case 8:16-cv-01321-JLS-KES Document 52-4 Filed 03/08/17 Page 4 of 5 Page ID #:596 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21. Valeant Holdings did not engage in any communications with Plaintiffs regarding the subject intellectual property, or the three agreements involving Plaintiffs in California. 22. Bausch & Lomb Saglik is incorporated and has its principal place of business in Turkey, and therefore it is not a citizen of California. 23. Bausch & Lomb Saglik maintains no offices or employees in California. 24. Bausch & Lomb Saglik has no sales operations or customers in California. 25. Bausch & Lomb Saglik does not market its products or direct its sales towards California. 26. The three agreements at issue involving Plaintiffs were executed outside of California. 27. Bausch & Lomb Saglik did not negotiate or execute any agreements with any party in this action in California. 28. Bausch & Lomb Saglik did not engage in any communications with any party in this action regarding Plaintiffs, the subject intellectual property, the three agreements involving Plaintiffs, or the agreements between Valeant and Anadolu Tip in California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: August 4, 2016 By:7;/03,A 1421' Pamela Lewis 4 DECL, OF PAMELA LEWIS IN SUPPORT OF MOTION TO DISMISS 8:16-CV-01321-MS-KES Exhibit C 21 Case 8:16-cv-01321-JLS-KES Document 52-4 Filed 03/08/17 Page 5 of 5 Page ID #:597 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6) Case No: 8:16-CV-01321-JLS-KES UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION ICONLAB INC., a California corporation, ICON LAB GmbH, a German corporation, REPER-NN, CO. LTD, a Russian corporation, Plaintiffs, v. VALEANT PHARMACEUTICALS INTERNATIONAL, INC., a Delaware corporation; VALEANT HOLDINGS IRELAND, an Irish corporation; BAUSCH & LOMB INCORPORATED, a New York corporation; BAUSCH & LOMG SAGLIK ve OPTIK URUNLERI TIC. A.S., a Turkish corporation; ANADOLU TIP TEKNOLOJILERI URETIM PAZARLAMA ITHALAT IHRACAT TICARET ve SANAYI ANONIM SIRKETI, a Turkish corporation, AND DOES 1-20, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 8:16-cv-01321-JLS-KES [PROPOSED] ORDER GRANTING DEFENDANTS VALEANT PHARMACEUTICALS INTERNATIONAL, INC., VALEANT HOLDINGS IRELAND, BAUSCH & LOMB INCORPORATED, AND BAUSCH & LOMB SAGLIK VE OPTIK URUNLERI TIC A.S.’S MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Date: April 21, 2017 Time: 2:30 p.m. Ctrm: 10A Judge: Hon. Josephine L. Staton Presently before the Court is Defendants Valeant Pharmaceuticals International, Inc., Valeant Holdings Ireland, Bausch & Lomb Incorporated, and Bausch & Lomb Saglik ve Optik Urunleri Tic. A.S.’s (collectively, “Valeant Defendants”) Motion to Dismiss Plaintiffs’ First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Upon consideration of the papers and arguments submitted by the parties, Valeant Defendants’ Case 8:16-cv-01321-JLS-KES Document 52-5 Filed 03/08/17 Page 1 of 5 Page ID #:598 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6) Case No: 8:16-CV-01321-JLS-KES Renewed Motion to Dismiss is GRANTED. Plaintiffs’ claims asserted against the Valeant Defendants are hereby DISMISSED WITH PREJUDICE. Dated: _____________________ __________________________________ Hon. Josephine L. Staton United States District Judge Case 8:16-cv-01321-JLS-KES Document 52-5 Filed 03/08/17 Page 2 of 5 Page ID #:599 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6) Case No: 8:16-CV-01321-JLS-KES PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 5 Park Plaza, Suite 1600, Irvine, California 92614. On March 8, 2017, I served on the interested parties in said action the within: [PROPOSED] ORDER GRANTING DEFENDANTS VALEANT PHARMACEUTICALS INTERNATIONAL, INC., VALEANT HOLDINGS IRELAND, BAUSCH & LOMB INCORPORATED, AND BAUSCH & LOMB SAGLIK VE OPTIK URUNLERI TIC A.S.’S MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT by placing a true copy thereof in a sealed envelope(s) addressed as stated on the attached mailing list. (MAIL) I am readily familiar with this firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. (HAND DELIVERY) By placing a true and correct copy of the above document(s) in a sealed envelope addressed as indicated above and causing such envelope(s) to be delivered by hand to the addressee(s) designated. (BY FEDERAL EXPRESS, AN OVERNIGHT DELIVERY SERVICE) By placing a true and correct copy of the above document(s) in a sealed envelope addressed as indicated above and causing such envelope(s) to be delivered to the FEDERAL EXPRESS Service Center, and to be delivered by their next business day delivery service to the addressee designated. (ELECTRONIC FILING) I provided the document(s) listed above electronically through the CM/ECF system pursuant to the instructions set forth in the Local Rules for the United States District Court for the Central District of California. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed on March 8, 2017, at Irvine, California. Tony M. Diab /s/ Tony M. Diab (Type or print name) (Signature) Case 8:16-cv-01321-JLS-KES Document 52-5 Filed 03/08/17 Page 3 of 5 Page ID #:600 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6) Case No: 8:16-CV-01321-JLS-KES SERVICE LIST David Young, Esq. LAW OFFICES OF DAVID YOUNG 11845 West Olympic Boulevard, Suite 1110 Los Angeles, CA 90064 Tel: 310-575-0308 Fax: 310-575-0311 dyounglaw@verizon.net Attorneys for Plaintiffs Case 8:16-cv-01321-JLS-KES Document 52-5 Filed 03/08/17 Page 4 of 5 Page ID #:601 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6) Case No: 8:16-CV-01321-JLS-KES Case 8:16-cv-01321-JLS-KES Document 52-5 Filed 03/08/17 Page 5 of 5 Page ID #:602 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6) Case No: 8:16-CV-01321-JLS-KES UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION ICONLAB INC., a California corporation, ICON LAB GmbH, a German corporation, REPER-NN, CO. LTD, a Russian corporation, Plaintiffs, v. VALEANT PHARMACEUTICALS INTERNATIONAL, INC., a Delaware corporation; VALEANT HOLDINGS IRELAND, an Irish corporation; BAUSCH & LOMB INCORPORATED, a New York corporation; BAUSCH & LOMG SAGLIK ve OPTIK URUNLERI TIC. A.S., a Turkish corporation; ANADOLU TIP TEKNOLOJILERI URETIM PAZARLAMA ITHALAT IHRACAT TICARET ve SANAYI ANONIM SIRKETI, a Turkish corporation, AND DOES 1-20, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 8:16-cv-01321-JLS-KES [PROPOSED] ORDER GRANTING DEFENDANTS VALEANT PHARMACEUTICALS INTERNATIONAL, INC., VALEANT HOLDINGS IRELAND, BAUSCH & LOMB INCORPORATED, AND BAUSCH & LOMB SAGLIK VE OPTIK URUNLERI TIC A.S.’S MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Date: April 21, 2017 Time: 2:30 p.m. Ctrm: 10A Judge: Hon. Josephine L. Staton Presently before the Court is Defendants Valeant Pharmaceuticals International, Inc., Valeant Holdings Ireland, Bausch & Lomb Incorporated, and Bausch & Lomb Saglik ve Optik Urunleri Tic. A.S.’s (collectively, “Valeant Defendants”) Motion to Dismiss Plaintiffs’ First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(2). Upon consideration of the papers and arguments submitted by the parties, Valeant Defendants’ Renewed Motion to Dismiss is GRANTED. This Court lacks personal jurisdiction over 387289 v1 Case 8:16-cv-01321-JLS-KES Document 52-6 Filed 03/08/17 Page 1 of 4 Page ID #:603 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6) Case No: 8:16-CV-01321-JLS-KES Defendants Valeant Holdings Ireland and Bausch & Lomb Saglik ve Optik Urunleri Tic A.S. Accordingly, these defendants are DISMISSED WITH PREJUDICE. Dated: _____________________ __________________________________ Hon. Josephine L. Staton United States District Judge Case 8:16-cv-01321-JLS-KES Document 52-6 Filed 03/08/17 Page 2 of 4 Page ID #:604 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6) Case No: 8:16-CV-01321-JLS-KES PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 5 Park Plaza, Suite 1600, Irvine, California 92614. On March 8, 2017, I served on the interested parties in said action the within: [PROPOSED] ORDER GRANTING DEFENDANTS VALEANT PHARMACEUTICALS INTERNATIONAL, INC., VALEANT HOLDINGS IRELAND, BAUSCH & LOMB INCORPORATED, AND BAUSCH & LOMB SAGLIK VE OPTIK URUNLERI TIC A.S.’S MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT by placing a true copy thereof in a sealed envelope(s) addressed as stated on the attached mailing list. (MAIL) I am readily familiar with this firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. (HAND DELIVERY) By placing a true and correct copy of the above document(s) in a sealed envelope addressed as indicated above and causing such envelope(s) to be delivered by hand to the addressee(s) designated. (BY FEDERAL EXPRESS, AN OVERNIGHT DELIVERY SERVICE) By placing a true and correct copy of the above document(s) in a sealed envelope addressed as indicated above and causing such envelope(s) to be delivered to the FEDERAL EXPRESS Service Center, and to be delivered by their next business day delivery service to the addressee designated. (ELECTRONIC FILING) I provided the document(s) listed above electronically through the CM/ECF system pursuant to the instructions set forth in the Local Rules for the United States District Court for the Central District of California. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed on March 8, 2017, at Irvine, California. Tony M. Diab /s/ Tony M. Diab (Type or print name) (Signature) Case 8:16-cv-01321-JLS-KES Document 52-6 Filed 03/08/17 Page 3 of 4 Page ID #:605 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS UNDER FRCP 12(b)(6) Case No: 8:16-CV-01321-JLS-KES SERVICE LIST David Young, Esq. LAW OFFICES OF DAVID YOUNG 11845 West Olympic Boulevard, Suite 1110 Los Angeles, CA 90064 Tel: 310-575-0308 Fax: 310-575-0311 dyounglaw@verizon.net Attorneys for Plaintiffs Case 8:16-cv-01321-JLS-KES Document 52-6 Filed 03/08/17 Page 4 of 4 Page ID #:606