The Defense and Prosecution of Lost Profits and Business Tort Claims Lessons Learned from Asahi Kasei Pharma Corp. v. Actelion Ltd.

On March 12, the California Supreme Court denied review of a $407 million judgment, which included approximately $360 million in lost-profit damages, arising from Swiss drugmaker Actelion Ltd.’s acquisition of California biotech startup CoTherix, Inc.

Some observers have predicted that the published appellate court opinion affirming the judgment will cause a wave in lost-profit litigation, push pharmaceutical firms out California, and discourage companies from participating in mergers and acquisitions, ultimately hampering California’s notorious start-up culture. In this seminar, the Asahi trial and appellate team will address these concerns and cover the following three topics of interest arising from the litigation:

• Tortious interference with contracts in the
  parent/subsidiary context
  • Who can be held liable for interference and for what kinds of conduct?
  • What defenses are available for corporate parents and affiliates?
  • How can one prove (or disprove) the justification defense?
     
• Lost profits
  • What is the current status of lost-profit damages law in California? Does Asahi change anything?
  • What are the considerations in opposing or pursuing lost profits in litigation?
     
• Licensing and collaboration agreements
  • What kinds of provisions can best protect licensees and licensors?
  • What are the best practices in collaboration agreements?