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`ROBINS KAPLAN LLP
`Scott F. Gautier (pro hac vice pending)
`2049 Century Park East, Suite 3400
`Los Angeles, CA 90067
`Telephone: (310) 552-0130
`Facsimile: (310) 229-5800
`Emails:
`sgautier@robinskaplan.com
`
`Counsel to Collegium Pharmaceutical, Inc.
`
`UNITED STATES BANKRUPTCY COURT
`SOUTHERN DISTRICT OF NEW YORK
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`:
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`In re:
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`PURDUE PHARMA L.P., et al.,
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`Debtors.
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`:
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`Chapter 11
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`Case No. 19-23649 (RDD)
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`(Jointly Administered)
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`RESPONSE OF COLLEGIUM PHARMACEUTICAL, INC. TO DEBTORS’ MOTION
`FOR ORDER MODIFYING THE AUTOMATIC STAY TO PERMIT THE DEBTORS
`TO PROSECUTE CERTAIN PENDING PATENT LITIGATION
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`Purdue 2041
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`TABLE OF CONTENTS
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`Page
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`2.
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`PRELIMINARY STATEMENT .................................................................................................... 1
`STATEMENT OF FACTS ............................................................................................................. 3
`ARGUMENT .................................................................................................................................. 6
`A. Cause Does Not Exist to Lift the Automatic Stay Unless the Stay is Lifted as to the PTAB
`Action. .................................................................................................................................. 6
`1.
`Lifting the Stay on Both the Infringement Action and The PTAB Action Serves
`Judicial Economy. ......................................................................................................... 6
`Lifting the Stay on Both the Infringement Action and The PTAB Action Does Not
`Interfere with the Bankruptcy Cases. ............................................................................ 7
`Lifting the Stay on Both the Infringement Action and The PTAB Action Will Not
`Prejudice Any Party. ..................................................................................................... 8
`B. The Debtors’ Arguments as to the Expiration of the Statutory Deadline are Without Merit.
`
` .......................................................................................................................................... 9
`C. The Debtors’ Use of the Automatic Stay as a Sword is Improper. .................................... 11
`CONCLUSION ............................................................................................................................. 12
`DECLARATION OF OREN LANGER ....................................................................................... 13
`REQUEST FOR JUDICIAL NOTICE ......................................................................................... 15
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`3.
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Cases
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`Bank of America, N.A. v. Johnson,
`479 B.R. 159 (Bankr. N.D. Ga. 2012) .....................................................................................10
`
`Collegium Pharm., Inc. v. Purdue Pharma, L.P. et al.,
`Case No. PGR2018-00048 .........................................................................................................4
`
`Forrest Guardians v. Babbitt,
`174 F.3d 1178 (10th Cir. 1998) .............................................................................................2, 9
`
`In re Borgini,
`2005 WL 2205714 (Bankr. C.D. Ill. 2005) ..........................................................................9, 12
`
`In re Briarpatch Film Corp.,
`281 B.R. 820 (Bankr. S.D.N.Y. 2002) ...........................................................................3, 11, 12
`
`In re Collins,
`250 B.R. 645 (Bankr. N.D. Ill. 2000) ......................................................................................12
`
`In re Hoffinger Industries, Inc.,
`329 F.3d 948 (8th Cir. 2003) .............................................................................................10, 11
`
`In re Shamus Holdings, LLC,
`642 F.3d 263 (1st Cir. 2011) ....................................................................................................11
`
`In re Sommax Industries, Inc.,
`907 F.2d 1280 (2d Cir. 1990).....................................................................................................8
`
`Int’l Distribution Centers v. Walsh Trucking Co.,
`62 B.R. 723 (S.D.N.Y. 1986) ...............................................................................................3, 11
`
`Matter of U.S. Brass Corp.,
`110 F.3d 1261 (7th Cir. 1997) .............................................................................................9, 12
`
`Personalweb Technologies, LLC v. Google Inc.,
`No. 5:13–CV–01317–EJD, 2014 WL 4100743 (N.D. Cal. Aug. 20, 2014) ..............................7
`
`Purdue Pharma, L.P., et al. v. Collegium Pharm., Inc.,
`Case No. 1:15-cv-13099-FDS ....................................................................................................4
`
`Statutes
`
`11 U.S.C. § 101, et seq...........................................................................................................1, 5, 10
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`11 U.S.C. § 108(c) ...................................................................................................................10, 11
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`11 U.S.C. § 362(a)(1) ...............................................................................................................10, 11
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`Other Authorities
`
`37 C.F.R. § 42.200(c)...............................................................................................2, 4, 5, 9, 10, 11
`
`U.S. Patent No. 9,693,961............................................................................................1, 4, 5, 6, 7, 8
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`Collegium Pharmaceutical, Inc. (“Collegium”), hereby submits this response to the
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`Debtors’ Motion for Order Modifying the Automatic Stay to Permit the Debtors to Prosecute
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`Certain Pending Patent Litigation (the “Motion”), filed by the above-captioned debtors (the
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`“Debtors”) of these chapter 11 cases (the “Bankruptcy Cases”) on July 2, 2020 [Docket No.
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`1328].1 In support thereof, Collegium respectfully states:
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`PRELIMINARY STATEMENT
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`Prior to the Bankruptcy Cases, the Debtors commenced patent infringement lawsuits
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`against Collegium (the “Infringement Action”), asserting that Collegium’s New Drug
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`Application for its Xtampza® ER product (“Xtampza”) infringed on certain of the Debtors’
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`patents, including U.S. Patent No. 9,693,961 (“the ’961 Patent”). Shortly after the Debtors
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`asserted claims of infringement of the ’961 patent in the Infringement Action, Collegium filed a
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`petition for Post Grant Review before the Patent Trial and Appeal Board (the “PTAB”), seeking
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`a determination that the ’961 patent was invalid (the “PTAB Action”). The PTAB concluded the
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`’961 patent is likely invalid and instituted the Post Grant Review proceedings for a trial of the
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`invalidity issue. See Exhibit A (PTAB Institution Decision) to Request for Judicial Notice.
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`Following a Patent Office trial on invalidity, and two weeks before the PTAB was
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`required to issue its determination as to the validity of the ’961 Patent, the Debtors filed the
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`Bankruptcy Cases which stayed the Infringement Action and the PTAB Action pursuant to
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`section 362(a) of title 11 of the United States Code, § 101, et seq. (the “Bankruptcy
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`Code”). While the Debtors seek an order lifting the automatic stay to allow the Debtors to
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`continue the Infringement Action, they failed to reference the related PTAB Action which is
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`necessarily intertwined with the Infringement Action.
`
`
`1 On July 14, 2020, the Debtors agreed to an extension of the last date for Collegium to respond
`to the Motion, from July 16, 2020, to, and including, July 20, 2020.
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`To avoid the filing of this Response, Collegium contacted the Debtors to request that they
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`stipulate to lifting the automatic stay as to the PTAB Action in addition to the Infringement
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`Action. The Debtors indicated that they have no objection to lifting the stay in the PTAB action,
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`but only to the extent that it does not prejudice the Debtors’ novel argument, which they have
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`now raised for the first time, that the PTAB Action “no longer exists.” The Debtors posit that the
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`automatic stay destroyed the PTAB action because the PTAB observed the automatic stay and
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`did not issue a determination within what would otherwise have been the statutory deadline set
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`forth under 35 U.S.C. § 326(a)(11), a deadline that would have passed (but for the automatic
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`stay) after the Debtors filed the Bankruptcy Cases.
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`Collegium acknowledges that the stay can be lifted without the Debtors’ waiver of such
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`arguments, but notes that the Debtors’ arguments are meritless and antithetical to the very nature
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`of the automatic stay. Moreover, nothing in the statutes governing post grant reviews before the
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`PTAB provides that the PTAB Action ceases to exist if the PTAB does not render its
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`determination by the statutory deadline. Rather, if the deadline had not been automatically tolled
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`by the automatic stay (which it was), the parties may use court process to compel the PTAB to
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`act on any missed deadline. See Forrest Guardians v. Babbitt, 174 F.3d 1178 (10th Cir. 1998).
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`Collegium is confident that the PTAB has authority, jurisdiction and will act if the stay is lifted
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`on the PTAB Action.
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`Collegium proposes that it makes sense for both of the related matters—the Infringement
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`Action and the PTAB Action—to either remain stayed or to go forward. It would be inefficient
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`for the Infringement Action to go forward without the PTAB Action because the PTAB Action
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`will likely be decided in a matter of days after the stay is lifted and may render much of the
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`Infringement Action moot. On this point, Collegium believes that the Debtors, the Official
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`Committee of Unsecured Creditors appointed in these cases, and Collegium agree.
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`With respect to the effect of the automatic stay on the PTAB’s continuing jurisdiction and
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`authority, Collegium respectfully notes that the question of the PTAB’s authority and jurisdiction
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`are matters to be determined by the PTAB. However, to the extent that the Court intends to
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`comment on such issues, it must find that the Debtors’ arguments are misplaced and without
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`merit by virtue of the Bankruptcy Code. The automatic stay, which shields the estate from the
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`costs and demands of continuing litigation, cannot also be a sword used by the Debtors to defeat
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`non-debtor litigants. See, e.g., In re Briarpatch Film Corp., 281 B.R. 820 (Bankr. S.D.N.Y.
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`2002). To the contrary, courts regularly interpret the automatic stay to preserve and protect the
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`rights of non-debtor parties to the stayed litigation, including the automatic extension of statutory
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`deadlines. Int’l Distribution Centers v. Walsh Trucking Co., 62 B.R. 723 (S.D.N.Y. 1986).
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`Collegium respectfully requests that the Court deny the Motion, or, in the alternative,
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`modify the automatic stay to permit both the Infringement Action and the PTAB Action to
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`proceed.2
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`STATEMENT OF FACTS
`
`1.
`
`On September 21, 2017, debtors Purdue Phama, L.P., Purdue Pharmaceuticals,
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`L.P., and P.F. Laboratories, Inc. filed a complaint in the United States District Court for the
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`District of Massachusetts (the “District Court”), alleging that Collegium’s New Drug
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`Application for its Xtampza product infringed on the Debtors’ ’961 Patent, thereby commencing
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`the Infringement Action.
`
`
`2 Collegium maintains that the Court may make conditions to the modification of the stay based
`on Debtors’ Motion, but out of an abundance of caution, Collegium has filed a Motion to lift the
`stay, and sought an Order Shortening Time, with respect to the PTAB Action.
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`2.
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`On December 13, 2017, the District Court consolidated the Infringement Action
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`into the lead action where the Debtors had asserted other patents-in-suit against the Collegium.
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`The consolidated action is styled Purdue Pharma, L.P., et al. v. Collegium Pharm., Inc., Case
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`No. 1:15-cv-13099-FDS.
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`3.
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`On March 13, 2018, Collegium filed a petition for Post Grant Review of the ʼ961
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`Patent with the PTAB, commencing the PTAB Action. The PTAB Action is styled Collegium
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`Pharm., Inc. v. Purdue Pharma, L.P. et al., Case No. PGR2018-00048.
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`4.
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`On October 3, 2018, Collegium moved to stay the Infringement Action in view of
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`the related PTAB proceedings related to the ’961 Patent. The court took no further action with
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`respect to the ’961 Patent and did not set any schedule for proceedings on the ’961 Patent
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`following Collegium’s motion, allowing the PTAB to complete the trial of the validity of the
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`ʼ961 Patent.
`
`5.
`
`On October 4, 2018, the PTAB issued its decision finding that the ’961 Patent is
`
`eligible for post-grant review, and that Collegium had demonstrated that the ’961 Patent was
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`likely unpatentable based on the lack of written description and anticipation grounds set forth in
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`the Petition (the “Oct. 4 Decision”). A true and correct copy of the Oct. 4 Decision is attached
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`as Exhibit “A” to the annexed Request for Judicial Notice.
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`6.
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`Pursuant to 35 U.S.C. § 326(a)(11), the Oct. 4 Decision triggered a one-year
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`deadline for the PTAB to issue its Final Written Decision (i.e. October 4, 2019) (the “Statutory
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`Deadline”).
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`7.
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`On September 15, 2019, the Debtors filed a voluntary petition for relief under
`
`chapter 11 of the Bankruptcy Code, thereby commencing the Bankruptcy Cases.
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`8.
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`On September 24, 2019, the Debtors filed a Notice of Bankruptcy and Imposition
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`of Automatic Stay in the PTAB Action alerting the PTAB that the PTAB Action was stayed
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`pursuant to section 362(a) of the Bankruptcy Code (the “PTAB Stay Notice”). A true and
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`correct copy of the PTAB Stay Notice is attached as Exhibit “B” to the annexed Request for
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`Judicial Notice.
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`9.
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`On October 2, 2019—two days before the PTAB was required under 35 U.S.C. §
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`326(a)(11) to render its decision as to the validity of the ’961 Patent—the PTAB entered its
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`Order recognizing that the PTAB Action was subject to the automatic stay (the “PTAB Stay
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`Order”). A true and correct copy of the PTAB Stay Order is attached as Exhibit “C” to the
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`annexed Request for Judicial Notice.
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`10.
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`On July 2, 2020, the Debtors filed their Motion seeking relief from the automatic
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`stay to permit the District Court Infringement Action (but not the PTAB Action) to proceed.
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`11.
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`On July 14, 2020, in an effort to avoid filing a response, Collegium contacted the
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`Debtors to request that they stipulate to lifting the automatic stay as to the PTAB Action in
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`addition to the Infringement Action. See Para. 3 to Declaration of Oren Langer, annexed
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`herewith (the “Langer Declaration”).
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`12.
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`The Debtors indicated that they are not opposed to Collegium’s request, but want
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`to preserve the argument, that they raised for the first time, that the PTAB action “no longer
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`exists” because the PTAB observed the automatic stay and did not issue a final written decision
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`as to the validity of the ’961 Patent within what would have been, but for the automatic stay, the
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`Statutory Deadline. See Para. 4 to Langer Declaration.
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`ARGUMENT
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`A.
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`Cause Does Not Exist to Lift the Automatic Stay Unless the Stay is Lifted as to the
`PTAB Action.
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`The Debtors assert that lifting the automatic stay will: (i) serve judicial economy by
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`resulting in a full resolution of the dispute; (ii) not interfere with the Bankruptcy Cases; and (iii)
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`not result in prejudice to any party. See Motion, at ¶¶ 13-17. An analysis of each of these
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`factors demonstrates that lifting the automatic stay only serves the interests of the Estate if the
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`stay is lifted as to both the Infringement Action and the PTAB Action. Lifting the stay as to only
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`the Infringement Action can only lead to a waste of Estate resources because the Infringement
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`Action may later become moot when the stay is lifted and the PTAB rules.
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`1.
`
`Lifting the Stay on Both the Infringement Action and The PTAB Action
`Serves Judicial Economy.
`
`On the Petition Date, the PTAB Action was fully briefed, argued and only days away
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`from the deadline by which the PTAB was scheduled to submit its final decision as to the
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`validity of the ’961 Patent. The Infringement Action, on the other hand, is still in its early
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`discovery stage. Lifting the automatic stay to permit the Infringement Action to proceed, but not
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`the PTAB Action, does not promote judicial economy and will not lead to a full resolution of the
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`Parties’ dispute.
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`The very purpose of the PTAB Action is to make the Infringement Action more efficient.
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`Seeking an invalidity ruling from the PTAB presents an accused infringer with a speedier
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`alternative than district court litigation to determine if a patent is invalid. Indeed, Congress
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`specifically created the PTAB with the intention that the PTAB’s specialized expertise in the
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`evaluation of patents would avoid wasteful and duplicative proceedings in the District Court, and
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`the judicial economy served by the PTAB process has been acknowledged by District Courts as
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`the basis for staying patent infringement actions where a PTAB proceeding is pending. See
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`Personalweb Technologies, LLC v. Google Inc., No. 5:13–CV–01317–EJD, 2014 WL 4100743,
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`at *5 (N.D. Cal. Aug. 20, 2014) (“Indeed, allowing [patent] invalidity arguments to be
`
`determined once, employing the specialized expertise of the PTAB, produces the exact results—
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`avoiding duplicative costs and efforts and averting the possibility of inconsistent judgments—
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`intended by the AIA and previous procedures.”).
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`In the present matter, the PTAB is likely prepared to issue a ruling within days of the stay
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`being lifted. Accordingly, lifting the stay as to the Infringement Action alone will impede
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`judicial economy by depriving the Parties of the benefit of the forthcoming PTAB decision. The
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`PTAB decision will narrow the issues presented in the Infringement Action by resolving the
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`critical issue of the validity of the ’961 Patent. The judicial economy served by the PTAB has
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`been acknowledged by courts as a basis for staying the very type of patent infringement litigation
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`that the Debtors seek to continue when a related PTAB proceeding is pending. See Personalweb,
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`2014 WL 4100743, at *5.
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`2.
`
`Lifting the Stay on Both the Infringement Action and The PTAB Action Does
`Not Interfere with the Bankruptcy Cases.
`
`The Debtors assert that granting relief from the stay, solely as to the Infringement Action,
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`will not interfere with the Bankruptcy Cases, on the basis that the Debtors have ample cash on
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`hand to fund the litigation. Although the Debtors may have sufficient assets to fund the
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`Infringement Action, the Debtors have a fiduciary obligation to their creditors and stakeholders
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`to use those assets as efficiently as practicable. The forthcoming PTAB decision, which will
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`narrow the issues in the Infringement Action, will permit the Debtors to use their funds more
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`efficiently and avoid superfluous expenditure on issues that have already been fully briefed and
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`heard with the PTAB. Thus, lifting the stay as to the Infringement Action, but not the PTAB
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`Action, plainly interferes with the Debtors’ efficient use of their assets.
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`3.
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`Lifting the Stay on Both the Infringement Action and The PTAB Action Will
`Not Prejudice Any Party.
`
`The Debtors’ election to seek relief from the automatic stay as to the Infringement
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`Action, but not the PTAB Action, is prejudicial to creditors of the Estate because it promotes the
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`inefficient use of Estate funds. The PTAB’s decision is expected almost immediately. If the ’961
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`Patent is invalidated by the PTAB, it would be a waste of time and money for the Parties’
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`litigation regarding the ’961 patent to continue. Conversely, not lifting the stay to permit the
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`PTAB Action to proceed, while allowing the Infringement Action to proceed, will unduly delay
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`the resolution of a key issue in the matter—the validity of the ’961 Patent—and will result in
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`significantly greater expense to the Debtors and Collegium.
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`4.
`
`All Factors Weigh in Favor of Lifting the Stay for Both Actions.
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`Based on the above, the “balance of harm” favors denial of the Debtors’ request to lift the
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`stay as to the Infringement Action unless the stay is also lifted as to the PTAB Action. Lifting
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`the stay as to only the Infringement Action will be inefficient and expensive. Conversely, lifting
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`the stay as to the PTAB Action will benefit the Debtors and Collegium with a decision that will
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`narrow the issues of the Infringement Action. Additionally, several additional factors set forth in
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`the Second Circuit’s decision in In re Sommax Industries, Inc., 907 F.2d 1280 (2d Cir. 1990), are
`
`present here, including: (i) the presence of a specialized tribunal—the PTAB—with the
`
`necessary expertise to resolve the PTAB Action; and (ii) the “readiness of trial” in the PTAB
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`Action (which is fully briefed and heard, and awaiting announcement of the decision by the
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`PTAB), as opposed the Infringement Action, which is still in its early discovery phase.
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`In sum, lifting the automatic stay only serves the interests of the Estate and its creditors if
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`the stay is lifted as to both the Infringement Action and the PTAB Action.
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`B.
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`The Debtors’ Arguments as to the Expiration of the Statutory Deadline are Without
`Merit.
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`Despite the clear efficiencies of lifting the stay as to the PTAB Action, the Debtors have
`
`asserted that the automatic stay has divested the PTAB of jurisdiction because the PTAB’s
`
`statutory deadline expired while the PTAB action was stayed. The Debtors’ arguments are
`
`without merit, are antithetical to the nature of the automatic stay and constitute an improper
`
`attempt at forum-shopping, which is not permitted under the Bankruptcy Code. Matter of U.S.
`
`Brass Corp., 110 F.3d 1261, 1265 (7th Cir. 1997) (“The use of the Bankruptcy Code to obtain a
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`favorable forum should not be encouraged.”); In re Borgini, 2005 WL 2205714, at *3 (Bankr.
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`C.D. Ill. 2005) (same).
`
`As an initial matter, the issue of whether the automatic stay divested the PTAB of
`
`jurisdiction is a matter for the PTAB to decide. The notion that the stay, or a passing deadline,
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`would divest a body of authority or jurisdiction is not supported by law. As a general rule, if an
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`administrative body, such as the PTAB, fails to render a timely decision, the proper course of
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`action is for parties to compel the agency to act. Forrest Guardians v. Babbitt, 174 F.3d 1178
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`(10th Cir. 1998) (holding that when an agency fails to act by a “statutorily imposed absolute
`
`deadline,” under the Administrative Procedure Act, the action has been “unlawfully withheld”
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`and the court has no choice but to compel the agency to act).3 Whether jurisdiction exists at the
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`PTAB is solely a decision for the PTAB to make; Collegium is confident that the PTAB will find
`
`that any period in which it was required to act has been tolled and that in any event, the
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`expiration of any such period would not divest the PTAB of jurisdiction or authority.
`
`
`3 To be clear, Collegium does not contend that, by obtaining relief from stay as to the PTAB
`Action, the Debtors waive their right to argue that the PTAB lacks jurisdiction to render its
`decision.
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`From a bankruptcy law perspective, it should be clear that any applicable statutory
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`deadline in a stayed proceeding is automatically extended pursuant to sections 108(c) and 362(a)
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`of the Bankruptcy Code. Section 362(a)(1) prevents the “commencement or continuation… of a
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`judicial, administrative, or other action or proceeding against the debtor.” 11 U.S.C. § 362(a).
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`The automatic stay suspends judicial proceedings against the debtor in their entirety—including
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`any and all deadlines in the proceeding. See Bank of America, N.A. v. Johnson, 479 B.R. 159
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`(Bankr. N.D. Ga. 2012) (holding that the automatic stay suspended the obligation of the debtor to
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`file an answer because “the automatic stay means nothing if it does not operate to stay the
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`proceeding in its entirety.”) (emphasis added). Section 108(c) provides that “if applicable
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`nonbankruptcy law [or] an order entered in a nonbankruptcy proceeding... fixes a period for…
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`continuing a civil action in a court other than a bankruptcy court on a claim against the debtor…
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`then such period does not expire until the later of the end of such period… or 30 days after the
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`notice of the termination or expiration of the stay.” 11 U.S.C. § 108(c). Several Courts hold that
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`sections 108(c) and 362(a) operate to toll and extend all deadlines in all matters subject to the
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`stay, whether imposed by appropriately promulgated rules, statute or Court order.
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`For example, in the decision, In re Hoffinger Industries, Inc., 329 F.3d 948 (8th Cir.
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`2003), the Eighth Circuit Court of Appeals held that the statutory deadline for the parties to file
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`an appeal was automatically tolled pursuant to sections 362(a) and 108(c). In doing so, the Court
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`reasoned:
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`[W]e note the obvious fit between the provisions in section
`362(a)(1) regarding the application of the automatic stay to
`‘continuation’ of a ‘judicial proceeding against the debtor’ and the
`language in section 108(c) regarding the extension of applicable
`nonbankruptcy deadlines relevant to ‘continuing a civil action…
`against the debtor’ until after the stay has expired or terminated…
`section 108(c) will be applicable if the stay terminates.”).
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`Collegium v. Purdue, PGR2018-00048
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`Id. at 952, citing Collier on Bankruptcy ¶ 108.03[2], at 108-10 (15th ed.); see also In re Shamus
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`Holdings, LLC, 642 F.3d 263 (1st Cir. 2011) (in which the First Circuit Court of Appeals held
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`that the statutory period for a mortgagee to record an extension of a mortgage was automatically
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`extended pursuant to section 108(c) of the Bankruptcy Code).
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`Based on the above, sections 362(a) and 108(c) support the assertion that all deadlines set
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`forth in the PTAB Action—including the Statutory Deadline for the PTAB to render its
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`decision—are automatically extended as a result of the Debtors’ bankruptcy filing. Indeed, the
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`argument set forth by the Debtors—that only certain dates and deadlines in a stayed action are
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`suspended—would be impossible and unnecessary. Instead, the automatic stay must be
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`interpreted as broadly as it is written to suspend all actions it applies to, which necessarily
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`encompasses the suspension of deadlines and requirements for parties (and the court or agency in
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`which the stayed action is pending) to act.
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`C.
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`The Debtors’ Use of the Automatic Stay as a Sword is Improper.
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`It is clear that, by seeking relief from the automatic stay to permit the Infringement
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`Action, but not the PTAB Action, to proceed, the Debtors are plainly using the automatic stay as
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`a tool to achieve a litigation advantage over Collegium, an increasingly bothersome competitor
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`of the Debtors. The automatic stay, however, is intended to shield the bankruptcy estate from the
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`costs and demands of continuing litigation so that the debtor is able to focus on managing issues
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`of the bankruptcy estate in an efficient manner—not to be used as a sword by debtors to obtain a
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`litigation advantage against non-debtor parties. Int’l Distribution Centers v. Walsh Trucking Co.,
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`62 B.R. 723 (S.D.N.Y. 1986) (“[a]lthough section 362 is a shield to protect the debtor to provide
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`for a fresh start, the automatic stay was not intended by Congress to be used as a sword.”); In re
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`Briarpatch Film Corp., 281 B.R. 820 (Bankr. S.D.N.Y. 2002) (“it has been often stated that the
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`automatic stay is a shield, not a sword”). Accordingly, Courts routinely reject efforts by debtors
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`to use the automatic stay as a tool to obtain a litigation advantage. See Matter of U.S. Brass
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`Corp., 110 F.3d 1261, 1265 (7th Cir. 1997) (“The use of the Bankruptcy Code to obtain a
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`favorable forum should not be encouraged.”); In re Borgini, 2005 WL 2205714, at *3 (Bankr.
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`C.D. Ill. 2005) (same); In re Briarpatch Film Corp., 281 B.R. 820 (Bankr. S.D.N.Y. 2002) (the
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`automatic stay cannot “be used to prevent the entry of judgment against the debtor on a lawsuit
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`in which its rights have been fully litigated.”); In re Collins, 250 B.R. 645, 663 (Bankr. N.D. Ill.
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`2000) (“[Debtor] did not merely invoke the shield of the automatic stay; he converted it to
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`a sword for the sole purpose of” frustrating an opposing litigant, which was improper).
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`The Debtors’ attempt to use the automatic stay as a shield to prevent the PTAB from
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`rendering its decision, while simultaneously using it as a sword to pursue the Infringement
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`Action as its exclusive forum, constitutes an improper abuse of the automatic stay and should be
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`rejected.
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`CONCLUSION
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`WHEREFORE, Collegium respectfully requests that the Court deny the Motion, or, in
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`the alternative, modify the automatic stay to permit both the Infringement Action and the PTAB
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`Action to proceed.
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`Dated:
`
`
`July 20, 2020
`Los Angeles, California
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`
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`ROBINS KAPLAN LLP
`
`
`
`By: /s/ Scott F. Gautier
`
`Scott F. Gautier (pro hac vice pending)
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`2049 Century Park East, Suite 3400
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`Los Angeles, CA 90067
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`Telephone: (310) 552-0130
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`Facsimile: (310) 229-5800
`
`
`
`Counsel to Collegium Pharmaceutical, Inc.
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`Purdue 2041
`Collegium v. Purdue, PGR2018-00048
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`DECLARATION OF OREN LANGER
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`I, Oren D. Langer, hereby declare:
`I am a partner with the law firm of Robins Kaplan LLP, counsel to Collegium
`1.
`Pharmaceutical, Inc. (“Collegium”) in the above-captioned bankruptcy case styled In re Purdue
`Pharma L.P., et al., case no. 19-23649 RDD. I submit this declaration in support of the
`Response of Coll