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Law360 (June 1, 2020, 4:38 PM EDT) -- Bayer HealthCare urged a California federal court against allowing a generic pet medication maker to flout international protocol for how to serve documents in a $114 million antitrust case, saying the company is trying to use the COVID-19 pandemic as a scapegoat for its own delays and errors.
Tevra Brands LLC is now looking to serve German-based Bayer AG and Bayer Animal Health GmbH through an email to U.S.-based Bayer HealthCare LLC's attorneys at Arnold & Porter. But Bayer HealthCare and Arnold & Porter wrote in a joint opposition brief Friday that the Northern District of California should not allow the generics maker to ignore protocols set in the Geneva Convention, given the delays caused by Tevra itself before the novel coronavirus slowed down document servicing.
Rather than blame its service vendor, the COVID-19 pandemic, German authorities, or Bayer and its attorneys at Arnold & Porter, Tevra should take responsibility for its own failure to act with "sufficient diligence and care" in serving the complaint, according to the brief.
Tevra waited a month after initiating the case in the Northern District of California in July to hire a German translator for the complaint, according to Friday's brief. German authorities twice pointed to submission errors in rejecting Tevra's attempts to serve the documents, and Tevra took weeks to respond to inquiries or to make submissions in the matter, the brief alleges.
"There is no basis to ignore the requirements of this treaty where Tevra has not even given the German court adequate time to complete service," the brief said. "Further, Tevra has yet to articulate a colorable basis for suing the two German defendants, and has admitted it did so primarily to obtain discovery from Germany. In such circumstances, bypassing service under the Hague Convention is unwarranted and risks harming international comity."
Tevra alleges that the Bayer companies have run a monopoly on topical imidacloprid products used as flea treatment for pets. Tevra says this stems from agreements with certain retailers that keep them from carrying Tevra's products, sometimes giving the retailers incentives not to do so.
In an amended filing in March, Tevra alleged that Bayer had engaged in exclusive dealing, tying and maintenance of a monopoly.
Tevra has told the court it competes with the pharmaceutical giant by producing "more effective" generic alternatives to Bayer products, which it offers for sale at a much lower cost, but 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."
Tevra last month urged the Northern District of California to allow it to use Bayer HealthCare's attorneys at Arnold & Porter to serve Bayer AG and Bayer Animal Health GmbH, arguing that doing so would not violate the Hague Convention and would adhere to due process requirements.
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, Tevra told the court in a memorandum accompanying its motion.
Because Germany prohibits service through mail or through "judicial officers," entities are typically served through the country's Central Authority, according to Tevra's 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," Tevra argued. "No legitimate goal would be served in denying this motion."
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, Sean M. Callagy, 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 Nadia Dreid and Christopher Cole. Editing by Steven Edelstone.
For a reprint of this article, please contact reprints@law360.com.
