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Judge Burke finds Court has personal jurisidiction over ANDA defendant

In the wake of two recent decisions regarding whether Delaware has jurisdiction over Mylan Pharmaceuticals, Inc. in ANDA litigation (Acorda Therapeutics, Inc. and AstraZeneca AB), Magistrate Judge Christopher J. Burke concluded that it did, and thus recommended that Mylan’s motion to dismiss for lack of personal jurisdiction be denied.  Forest Laboratories, Inc., et al. v. Amneal Pharmaceuticals LLC, et al., C.A. No. 14-508-LPS (D. Del. Feb. 26, 2015).

Similar to Judge Stark’s recent decision in Acorda, Judge Burke concluded that Mylan had consented to Delaware jurisdiction by registering to do business there – an argument also offered by plaintiffs in the Acorda and AstraZeneca cases.

Judge Burke recognized that the recent Acorda and AstraZeneca decisions came to opposite conclusions on this issue, and engaged in a fullsome analysis of whether compliance with state registration statute can be basis for finding consent to personal jurisdiction, both before the Supreme Court’s Daimler decision and in light of this decision.  See id. at 7-32.  Having done so, and having “address[ed] various points made” in both the Acorda and AstraZeneca opinions, Judge Burke  concluded that Mylan had consented to jurisdiction in Delaware. Id. at 32.

As a matter of procedure, Judge Burke also observed in a footnote that His Honor did not consider additional notices of supplemental authority the parties had filed, as they went “well beyond citing supplemental authority, and instead include extensive argument akin to what would be found in a brief,” in violation of Local Rule 7.1.2(b) that prohibits such supplemental argument.  Id. at 2 n.1.

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