Bayer Foe Blocked From Serving Docs Via Email Amid Virus

By Mike LaSusa
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Law360 (June 23, 2020, 11:01 PM EDT) -- A California federal judge overseeing a $114 million antitrust case against U.S.-based Bayer HealthCare LLC ruled Tuesday that the COVID-19 pandemic isn't enough reason to allow the generic pet medication company that brought the suit to serve Bayer's German parent company via email.

U.S. District Judge Beth Labson Freeman said Tevra Brands LLC can't serve Germany-based Bayer AG and Bayer Animal Health GmbH through an email to Bayer HealthCare's attorneys at Arnold & Porter.

Some of the delays in trying to serve the German companies were Tevra's fault, and German authorities haven't yet had time to process the service request made through traditional channels under the Hague Convention, Judge Labson said.

"These are certainly unprecedented times as the hardships of COVID-19 weigh heavily on all facets of life," the judge said. "But where a plaintiff fails to show that 'service through the convention would be unsuccessful or result in unreasonable burden or delay,' simply citing COVID-19 as an obstacle is not sufficient to bypass the requirements of the Hague Convention."

Bayer had slammed Tevra's request for alternative service last month as an attempt to use the pandemic as a scapegoat for its own delays and errors. But Judge Labson's ruling on Tuesday gave Tevra the option of renewing its request later if the situation changes.

The suit centers on Tevra's allegations that the Bayer companies have run a monopoly on topical imidacloprid products used as flea treatments 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 attorney Daniel D. Owen of Polsinelli PC told Law360 that the company saw the ruling as a loss.

"While we are disappointed with the ruling, we understand and respect the judge's ruling," Owen said.

Counsel for Bayer did not respond on Tuesday to requests for comment.

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 Kevin Penton. Editing by Jay Jackson Jr.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Tevra Brands LLC v. Bayer HealthCare LLC, et al


Case Number

5:19-cv-04312

Court

California Northern

Nature of Suit

Anti-Trust

Judge

Beth Labson Freeman

Date Filed

July 26, 2019

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