Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Sign up for our Legal Industry newsletter
You must correct or enter the following before you can sign up:
Thank You!
Law360 (May 18, 2020, 4:20 PM EDT) -- A California federal court has been urged to allow German-based Bayer AG and a subsidiary to be served documents for an antitrust suit over medication for fleas and ticks via email and through U.S.-based Bayer HealthCare LLC's attorneys at Arnold & Porter, due to service hiccups caused by the coronavirus pandemic.
Allowing Tevra Brands LLC to serve Bayer AG and Bayer Animal Health GmbH by emailing the documents to Arnold & Porter attorneys and instructing them to forward the documents to the German companies would not violate any relevant international agreement and would adhere to due process requirements, according to Tevra's memorandum accompanying its motion on Friday.
Bayer HealthCare's attorneys at the firm have refused to agree to the arrangement, arguing that they are not legal counsel in the case for either Bayer AG or Bayer Animal Health, according to Friday's memorandum.
The Northern District of California should allow the service arrangement, as Arnold & Porter represents Bayer AG in other matters, and the delays are impeding the parent company's involvement in discovery and other important matters in the litigation, according to the memorandum.
Because Germany prohibits service through mail or through "judicial officers," entities are typically served through the country's Central Authority, according to the memorandum. Tevra understands that the Central Authority has experienced service delays of several months because of COVID-19, but the nation, through the Hague Convention, does not expressly prohibit service through U.S.-based counsel, according to the memorandum.
"The defendants are delaying this case, and are imposing unnecessary costs and burdens on Tevra to capitalize on an asymmetry of resources between the parties," the memorandum reads. "No legitimate goal would be served in denying this motion."
Tevra initiated the case in July, alleging that the Bayer companies have run a monopoly on topical Imidacloprid products, stemming from agreements with certain retailers that Tevra says keep the retailers from carrying its products or give the retailers incentives not to do so.
Tevra previously attempted to serve the German companies before the novel coronavirus spread through the world, but ran into technical issues, according to Friday's memorandum.
In an amended filing in March, Tevra alleged that Bayer had engaged in exclusive dealing, tying and maintenance of a monopoly.
Tevra said that it competes with Bayer by producing "more effective" generic alternatives to Bayer products, which it offers for sales at a much lower cost, but that Bayer's "illegal restraints of trade and maintenance of their monopoly have substantially foreclosed competition, resulting in higher prices and fewer choices for buyers in the relevant market."
Bayer HealthCare pushed back in April, asserting that Tevra can't prove it unlawfully dominated sales on topical Imidacloprid products, as courts have long recognized that exclusive dealing arrangements — or discounts in exchange for exclusivity — are generally pro-competitive and result in lower prices for consumers.
"Such arrangements are problematic only if they are imposed by a firm with market power, result in substantial foreclosure that effectively prevents a competitor from reaching its ultimate customers, and are long-term," Bayer said. "Tevra continues to fail to plead adequately any of these elements."
Counsel for the parties could not be reached for comment on Monday.
Tevra is represented by Nitin Gambhir, Daniel D. Owen, Alexa Rae DiCunzolo and G. Gabriel Zorogastua of Polsinelli PC.
Bayer HealthCare is represented by Daniel B. Asimow, Sonia K. Pfaffenroth, Andrew S. Hannemann, Laura S. Shores and Katherine E Clemons of Arnold & Porter.
The case is Tevra Brands LLC v. Bayer HealthCare LLC et al., case number 5:19-cv-04312, in the U.S. District Court for the Northern District of California.
--Additional reporting by Christopher Cole. Editing by Peter Rozovsky.
For a reprint of this article, please contact reprints@law360.com.
