Allergan, Inc. v Apotex Inc., 2015 FC 367 (Hughes J.)
March 24, 2015
Jay Zakib and Adam Heckman for the Plaintiffs, Allergan, Inc., Allergan Sales, LLC, Allergan USA, Inc., and Kyorin Pharmaceutical Co., Ltd.
Andrew Brodkin for the Defendants, Apotex Inc. and Apotex Pharmachem Inc.
The Plaintiffs brought a motion for an order enforcing terms of settlement in the context of an action for infringement of Patent No. 1,340,316. The Defendants unsuccessfully argued that several exchanges of correspondence between counsel during settlement negotiations did not result in an agreement. The Court allowed the motion and issued an order enforcing the terms of settlement.
On April 9, 2012, after reaching the initial stage of discovery, the Defendants made an offer of settlement to the Plaintiffs. Exchanges of written correspondence followed for nearly two years. On March 17, 2014, counsel for the Plaintiffs wrote to the Court indicating that settlement had been reached. The same day, counsel for the Defendants wrote to the Court indicating that no settlement had been reached. Six months later, the Plaintiffs brought this motion.
Hughes J. found that the Court had jurisdiction to construe the correspondence which the Plaintiffs asserted was a completed contract. Hughes J. also found that the settlement terms were clear and unequivocal after correspondence between the parties on April 24, 2012. Subsequent changes to proposed minutes of settlement were characterized as fussing and wordsmithing which left the essential terms the same. Emails exchanged between the parties had resulted in acceptance of an open offer notwithstanding that execution of a more formal document was contemplated. The terms were enforced in an Order which expressly referenced the correspondence of April 9 and April 24, 2012.
By: David Wood, Borden Ladner Gervais LLP