Ferring Pharmaceuticals Inc. v. Braintree Laboratories, Inc.
38 F. Supp. 3d 169
D. Mass.2014Background
- Ferring and Braintree dispute over Prepopik and Suprep marketing in false advertising and unfair competition claims under Lanham Act and Massachusetts law.
- Braintree asserts misappropriation of trade secrets from its Prepopik/Suprep training materials in Ferring's possession.
- Ferring moves to dismiss Braintree's Amended Counterclaim; Braintree seeks leave for a Second Amended Counterclaim and for summary judgment on all Ferring claims.
- Counts asserted include misappropriation of trade secrets (Count I), Lanham Act false advertising (Count II), and Massachusetts 93A unfair competition (Count III); NJ additions contemplated in proposed amended counterclaim.
- Court applies Rule 12(b)(6) standards for plausibility and Rule 9(b) pleading standards for fraud-like claims, and evaluates the scope of alleged trade secrets and advertising claims.
- Court ultimately grants in part and denies in part Ferring’s motion to dismiss, allows limited amendment, and denies summary judgment without prejudice to renewal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Trade secrets claim viability | Braintree contends misappropriation of trade secrets by Ferring. | Ferring argues no protectable trade secrets and lack of particularity. | Count I dismissed; alleged trade secrets not adequately identified. |
| Lanham Act claims: which survive at pleading stage | Braintree asserts several false advertising claims survive; some are actionable. | Ferring argues many claims are non-actionable puffery or insufficiently pleaded. | Specific claims survive in part: 'lowest volume' survives; 'superior cleansing efficacy' and 'flexible dosing'/'helps achieve success' dismissed. |
| NJCFA pleading standard applicability and sufficiency | Proposed NJ CFA claim should be allowed given alleged unfair practices. | 9(b) heightened pleading applies to fraud-based CFA claims; claims lack particularity. | NJCFA claim cannot be adequately pled under Rule 9(b); proposed amendment insufficient. |
| Second Amended Counterclaim leave to amend | Braintree seeks to amend to include new Addendum-related facts. | Ferring cautions against harassing amendments and strategic delay. | Amendment allowed to include paragraphs 40-42; otherwise denied. |
| Summary judgment on Ferring claims | Discovery not needed; facts show disputes preclude judgment for either side. | No genuine issues of material fact for summary judgment. | Summary judgment denied without prejudice to renew after discovery. |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard for pleading a claim)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (threadbare recitals insufficient; plausibility required)
- Clorox Co. P.R. v. Procter & Gamble Commercial Co., 228 F.3d 24 (1st Cir. 2000) (literal falsity versus puffery in Lanham Act claims)
- Genzyme Corp. v. Shire Human Genetic Therapies, Inc., 906 F. Supp. 2d 9 (D. Mass. 2012) (courts decline to resolve true-false issues on motion to dismiss)
- Jet Spray Cooler, Inc. v. Crampton, 361 Mass. 835 (Mass. 1972) (criteria for trade secret protection and secrecy measures)
- Castrol, Inc. v. Quaker State Corp., 977 F.2d 57 (2d Cir. 1992) (establishment vs non-establishment claims in Lanham Act analysis)
- J.T. Healy & Son, Inc. v. James A. Murphy & Son, Inc., 260 N.E.2d 723 (Mass. 1970) (trade secrets and public knowledge distinction)