Case 1:15-cv-13099-FDS Document 330 Filed 02/08/23 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`C.A. No. 15-cv-13099-FDS
`(Lead Docket No.)
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`)))))))))))
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`PURDUE PHARMA L.P.,
`PURDUE PHARMACEUTICALS L.P.,
`and RHODES TECHNOLOGIES,
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`Plaintiffs,
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`v.
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`COLLEGIUM PHARMACEUTICAL, INC.,
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`Defendant.
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`STIPULATION AND [PROPOSED] ORDER
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`WHEREAS Plaintiffs Purdue Pharma L.P., Purdue Pharmaceuticals L.P.
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`(collectively, “Purdue”), and Rhodes Technologies (collectively, “Plaintiffs”) have asserted
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`infringement of U.S. Patent Nos. 9,073,933 (the “’933 patent”); 9,522,919 (the “’919
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`patent”); 10,407,434 (the “’434 patent”); and 9,693,961 (the “’961 patent”) (collectively,
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`the “patents in suit”) against Defendant Collegium Pharmaceutical, Inc. (“Defendant”) in
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`the above-referenced litigation;
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`WHEREAS on September 15, 2019, Plaintiffs and their debtor affiliates each
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`commenced a voluntary bankruptcy case under chapter 11 of title 11 of the United States
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`Code (11 U.S.C. § 101 et seq.) in the United States Bankruptcy Court for the Southern
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`District of New York (the “Bankruptcy Court”) (the “Purdue Bankruptcy Proceedings,”
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`Lead Case No. 19-bk-23649);
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`WHEREAS on April 1, 2021, the Court entered a Scheduling Order in the above-
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`referenced litigation through the close of expert discovery (Dkt. 253);
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`WHEREAS on September 17, 2021, the Bankruptcy Court approved the Twelfth
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`1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`
`
`
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`C.A. No. 15-cv-13099-FDS
`(Lead Docket No.)
`
`)))))))))))
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`
`
`
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`PURDUE PHARMA L.P.,
`PURDUE PHARMACEUTICALS L.P.,
`and RHODES TECHNOLOGIES,
`
`
`Plaintiffs,
`
`v.
`
`
`COLLEGIUM PHARMACEUTICAL, INC.,
`
`
`Defendant.
`
`STIPULATION AND [PROPOSED] ORDER
`
`WHEREAS Plaintiffs Purdue Pharma L.P., Purdue Pharmaceuticals L.P.
`
`(collectively, “Purdue”), and Rhodes Technologies (collectively, “Plaintiffs”) have asserted
`
`infringement of U.S. Patent Nos. 9,073,933 (the “’933 patent”); 9,522,919 (the “’919
`
`patent”); 10,407,434 (the “’434 patent”); and 9,693,961 (the “’961 patent”) (collectively,
`
`the “patents in suit”) against Defendant Collegium Pharmaceutical, Inc. (“Defendant”) in
`
`the above-referenced litigation;
`
`WHEREAS on September 15, 2019, Plaintiffs and their debtor affiliates each
`
`commenced a voluntary bankruptcy case under chapter 11 of title 11 of the United States
`
`Code (11 U.S.C. § 101 et seq.) in the United States Bankruptcy Court for the Southern
`
`District of New York (the “Bankruptcy Court”) (the “Purdue Bankruptcy Proceedings,”
`
`Lead Case No. 19-bk-23649);
`
`WHEREAS on April 1, 2021, the Court entered a Scheduling Order in the above-
`
`referenced litigation through the close of expert discovery (Dkt. 253);
`
`WHEREAS on September 17, 2021, the Bankruptcy Court approved the Twelfth
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`1
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`Case 1:15-cv-13099-FDS Document 330 Filed 02/08/23 Page 2 of 7
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`Amended Joint Chapter 11 Plan of Reorganization of Purdue Pharma L.P. and its Affiliated
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`Debtors (the “Plan of Reorganization”) (19-bk-23649, Dkt. 3786; 3787);
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`WHEREAS on November 16, 2021, Plaintiffs and Defendant filed a stipulation and
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`proposed order to temporarily suspend all litigation activity in this action (subject to certain
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`exceptions) until January 31, 2022 and to amend the existing Scheduling Order deadlines
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`(Dkt. 305), and on November 17, 2021, the Court so ordered the stipulation (Dkt. 306);
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`WHEREAS the Bankruptcy Court’s order approving the Plan of Reorganization was
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`appealed to the United States District Court for the Southern District of New York (Lead
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`Case No. 21-cv-07532), and on December 16, 2021, the United States District Court
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`vacated that confirmation order (21-cv-07532, Dkt. 301);
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`WHEREAS on January 7, 2022, the United States District Court certified its order for
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`interlocutory appeal, on the condition that the application to the United States Court of Appeals
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`for the Second Circuit for an appeal must be filed on an expedited basis, and that the application
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`must include a request that the appeal be considered on an expedited basis (21-cv-07532, Dkt.
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`305);
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`WHEREAS on January 18, 2022, Plaintiffs and their debtor affiliates petitioned the
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`Second Circuit for leave to appeal the United States District Court’s order, and included a
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`request for the appeal to be considered on an expedited basis (In re Pharma L.P. et al, Lead
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`Case No. 22-85 (2d Cir.), Dkt. 1);
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`WHEREAS on January 27, 2022, the Second Circuit issued an order (1) granting the
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`petitions for leave to appeal and the requests to expedite the appeals, (2) further ordering the
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`following accelerated briefing schedule wherein the joint appendix and final briefs are due on
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`2
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`Case 1:15-cv-13099-FDS Document 330 Filed 02/08/23 Page 3 of 7
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`March 28, 2022; and (3) notifying the parties that “[t]he Court will schedule oral argument the
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`week of April 25, 2022, or as soon thereafter as practicable” (22-85, Dkt. 219 at 2);
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`WHEREAS on February 8, 2022, the Court ordered a temporary suspension of all
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`litigation activity in this action until at least February 28, 2022, and thereafter until further order
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`of the Court (Dkt. 310);
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`WHEREAS on February 17, 2022, Purdue filed a notice of appeal of PGR2018-00048
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`in the United States Court of Appeals For The Federal Circuit (the “Federal Circuit”) of the
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`Final Written Decision and denial of Purdue’s request to terminate the PGR concerning the ’961
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`patent. (Purdue Pharma L.P. v. Collegium Pharmaceutical Inc., C.A. No. 2022-1482, D.I. 1
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`(Fed. Cir.);
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`WHEREAS on March 15, 2022, the Court held a telephonic status conference and
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`ordered counsel in this case to confer regarding a short-term extension of the case management
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`schedule going forward and to submit a proposal by April 4, 2022;
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`WHEREAS on April 4, 2022, the parties submitted a stipulation and proposed order to
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`amend the existing Scheduling Order deadlines and to stay (a) Case No. 17-cv-11814
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`concerning the ’961 patent, (b) Defendant’s Motion to Strike the Supplemental Declaration of
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`Panayiotis Constantinides, and (c) the Court’s Markman decision concerning the disputed claim
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`terms of the ’961 patent, pending resolution of Purdue’s appeal of PGR2018-00048 to the
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`Federal Circuit (Dkt. 314), and on April 5, 2022, the Court so ordered the stipulation (Dkt.
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`317);
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`WHEREAS on April 29, 2022, the Second Circuit held oral argument on the petition
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`filed by Plaintiffs and their debtor affiliates, and a decision on that petition is expected to issue
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`3
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`Case 1:15-cv-13099-FDS Document 330 Filed 02/08/23 Page 4 of 7
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`in the next three months;
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`WHEREAS on August 17, 2022, the Court scheduled a telephonic status conference for
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`November 16, 2022;
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`WHEREAS, on November 7, 2022, the parties submitted a stipulation and proposed
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`order to further amend the existing Scheduling Order deadlines by approximately 90 days
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`(Dkt. 326), and stated that “the parties agree that, at this time, a temporary suspension of the
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`existing case management schedule is appropriate in anticipation of the Second Circuit’s
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`decision on the petition filed by Plaintiffs and their debtor affiliates” and “respectfully
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`request[ed] that the telephonic status conference scheduled for November 16, 2022 be adjourned
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`until the week of February 13-17, 2023 (i.e., approximately 90 days later, subject to the Court’s
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`availability and approval)” (id. at 4–5), and on November 17, 2022 the Court so ordered the
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`stipulation (Dkt. 328);
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`WHEREAS, on November 17, 2022, the Court rescheduled the telephonic status
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`conference to February 15, 2023 at 2:00pm (Dkt. 329);
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`WHEREAS the Second Circuit has not yet issued its decision on the petition filed
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`by Plaintiffs and their debtor affiliates;
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`WHEREAS the parties agree that, at this time, a continuation of the temporary
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`suspension of the existing case management schedule is appropriate in anticipation of the
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`Second Circuit’s decision on the petition filed by Plaintiffs and their debtor affiliates;
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`IT IS HEREBY STIPULATED AND AGREED by the parties, subject to the approval
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`of the Court:
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`1.
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`The existing Scheduling Order deadlines are amended as follows:
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`4
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`Case 1:15-cv-13099-FDS Document 330 Filed 02/08/23 Page 5 of 7
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`Event
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`Close of Fact Discovery
`Parties’ Opening Expert
`Disclosures
`Parties’ Rebuttal Expert
`Disclosures
`Deposition of Parties’
`Trial Experts
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`Current Deadline
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`May 4, 2023
`June 15, 2023
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`July 27, 2023
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`Amended Deadline
`(approximately 90 days
`later)
`August 2, 2023
`September 13, 2023
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`October 25, 2023
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`August 24, 2023
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`November 22, 2023
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`2.
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`Plaintiffs and Defendant respectfully request that the telephonic status
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`
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`conference scheduled for February 15, 2023 be adjourned until the week of May 15-19, 2023
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`(i.e., approximately 90 days later, subject to the Court’s availability and approval).
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`3.
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`Plaintiffs and Defendant agree this stipulation and proposed order has no impact
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`on non-party discovery.
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`4.
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`Plaintiffs and Defendant agree this stipulation and proposed order will not be
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`used to argue for further suspensions or extensions of the case schedule.
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`5.
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`Plaintiffs and Defendant agree this stipulation and proposed order will not be
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`used to argue for or against any requests for injunctive relief.
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`AGREED AND STIPULATED TO:
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`Date: February 8, 2023
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`
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`/s/ Christopher M. Morrison
`Christopher M. Morrison (BBO# 651335)
`JONES DAY
`100 High Street
`21st Floor
`Boston, MA 02110
`Telephone: (617) 960-3939
`Facsimile: (617) 449-6999
`cmorrison@jonesday.com
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`John J. Normile (pro hac vice)
`Gasper J. LaRosa (pro hac vice)
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`/s/ Christopher P. Sullivan
`Christopher P. Sullivan (BBO #485120)
`ROBINS KAPLAN LLP
`800 Boylston Street
`Suite 2500
`Boston, MA 02199
`(617) 267-2300
`CSullivan@RobinsKaplan.com
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`Jake M. Holdreith (pro hac vice)
`Christopher A. Pinahs (pro hac vice)
`Emily J. Tremblay (pro hac vice)
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`5
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`Case 1:15-cv-13099-FDS Document 330 Filed 02/08/23 Page 6 of 7
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`Ellen K. Levish (pro hac vice)
`ROBINS KAPLAN LLP
`800 LaSalle Avenue
`Suite 2800
`Minneapolis, MN 55402
`(612) 349-8500
`JHoldreith@RobinsKaplan.com
`CPinahs@RobinsKaplan.com
`ETremblay@RobinsKaplan.com
`ELevish@RobinsKaplan.com
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`Oren D. Langer (pro hac vice)
`ROBINS KAPLAN LLP
`1325 Avenue of the Americas
`Suite 2601
`New York, NY 10019
`(212) 980-7400
`OLanger@RobinsKaplan.com
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`Attorneys for Defendant
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`Kevin V. McCarthy (pro hac vice)
`Adam M. Nicolais (pro hac vice)
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Telephone: (212) 326-3939
`Facsimile: (212) 755-7306
`jjnormile@jonesday.com
`gjlarosa@jonesday.com
`kmccarthy@jonesday.com
`anicolais@jonesday.com
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`Gregory Castanias (pro hac vice)
`Jennifer L. Swize (pro hac vice)
`JONES DAY
`51 Louisiana Avenue, N.W.
`Washington, D.C. 20001
`Telephone: (202) 879-3939
`Facsimile: (202) 626-1700
`gcastanias@jonesday.com
`jswize@jonesday.com
`Pablo D. Hendler (pro hac vice)
`POTOMAC LAW GROUP, PLLC
`1177 Avenue of the Americas, 5th Floor
`New York, NY 10036
`Telephone: (914) 893-6883
`Facsimile: (202) 318-7707
`phendler@potomaclaw.com
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`Attorneys for Plaintiffs
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`SO ORDERED this _____ day of ______________, 2023.
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`
`Hon. F. Dennis Saylor IV
`United States District Judge
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`6
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`Case 1:15-cv-13099-FDS Document 330 Filed 02/08/23 Page 7 of 7
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`CERTIFICATE OF SERVICE
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`I, Christopher M. Morrison, hereby certify that I have on this 8th day of February 2023
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`filed a copy of the foregoing through the Court’s CM/ECF system, which will serve an electronic
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`copy on counsel of record identified in the Notice of Electronic Filing.
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`/s/ Christopher M. Morrison
`Christopher M. Morrison
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`7
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