Judge Sleet Grants Stay of Action Filed as “Protective Measure”

March 1, 2016

Publication| Intellectual Property

In Helsinn Healthcare S.A. v. Hospira, Inc., C.A. No. 15-264-GMS (D. Del. Feb. 19, 2016), Judge Sleet granted plaintiffs Helsinn Healthcare S.A. and Roche Palo Alto’s motion to stay their second-filed Hatch Waxman case pending the outcome of a motion to dismiss for lack of subject matter jurisdiction in their first-filed action. Plaintiffs filed the second action in the District of Delaware to preserve the stay of FDA approval should their first-filed action in the District of New Jersey be dismissed. The same ANDA and patents were involved in each action. Although Judge Sleet stated that concerns about forum shopping were “not unfounded” (and thus causing prejudice to defendant Hospira, Inc.), the wastefulness of parallel proceedings, the early stage of the case, and plaintiffs’ stated intention to move to transfer the action to New Jersey if the court in New Jersey did not grant the pending motion to dismiss persuaded Judge Sleet that the stay was warranted.

Analysis: Although the Court had concerns about forum shopping, plaintiffs’ willingness to make representations to the Court regarding their plan for the Delaware action after the District of New Jersey rules on the pending motion to dismiss may have mitigated some of Judge Sleet’s concerns.

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