Jeff Himawon v. Cephalon, Inc.

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

JEFF HIMAWAN, JOSH TARGOFF )
and STEPHEN TULLMAN, as the )
duly-appointed Representatives of the )
former stockholders of CEPTION )
THERAPEUTICS, INC., )
)
Plaintiffs, )
)
v. ) C.A. No. 2018-0075-SG
)
CEPHALON, INC., TEVA )
PHARMACEUTICAL INDUSTRIES )
LTD., and TEVA )
PHARMACEUTICALS USA, INC., )
)
Defendants. )

MEMORANDUM OPINION

Date Submitted: September 21, 2018
Date Decided: December 28, 2018

Richard L. Renck and Oderah C. Nwaeze, of DUANE MORRIS LLP, Wilmington,
Delaware; OF COUNSEL: John J. Soroko, Wayne A. Mack, Jessica Priselac, and
Joseph J. Pangaro, of DUANE MORRIS LLP, Philadelphia, Pennsylvania, Attorneys
for the Plaintiffs.

Kevin Shannon and J. Matthew Belger, of POTTER ANDERSON & CORROON
LLP, Wilmington, Delaware; OF COUNSEL: Jay P. Lefkowitz, Matthew Solum,
Shireen A. Barday, Amanda B. Elbogen, and Z. Payvand Ahdout, of KIRKLAND &
ELLIS LLP, New York, New York, Attorneys for the Defendants.

GLASSCOCK, Vice Chancellor
 An antibody is a protein that allows an organism’s immune system to

overcome disease-causing pathogens. Science has identified numerous antibodies

that are or may be useful in fighting human diseases. As with new drugs, the process

of bringing antibodies to market, it appears, is long, arduous, and risky. Rigorous

governmental oversight for risk and efficacy, in both the United States and in

Europe, requires a significant investment of time and effort on the part of an entity

seeking to monetize potentially beneficial antibodies. The Plaintiffs here are

representatives of former stockholders of a company, Ception, that owned rights to

such an antibody. It was purchased by another entity, Cephalon; like Ception, a

Delaware corporation. The parties to that sale attempted to allocate the risk of the

development of the antibody among the parties. The resulting merger agreement

provided an initial sales price, together with earn-outs to be paid to the sellers by the

buyer. Those earn-outs were payable upon the meeting of certain milestones in the

approval of the antibody to treat two different conditions, in both Europe and the

United States. The buyer agreed to use commercially reasonable efforts to develop

the antibody and achieve the milestones.

This matter involves the sellers’ contention that the buyer’s efforts, which

have been abandoned with respect to development of the antibody to treat one of the

medical conditions upon which earn-outs depend, were not commercially

reasonable. The sellers argue that this breached the merger agreement, and seek

1
damages from the buyer and its affiliates. This Memorandum Opinion concerns the

Defendants’ Motions to Dismiss for failure to state a claim. In short, the Defendants

argue that the Complaint is inadequate, because, per the Defendants, it is entirely

conclusory as to their failure to use commercially reasonable efforts.

Ultimately, the Plaintiffs here face a difficult matter of proof. The merger

agreement leaves discretion on how to pursue development of the antibody with the

buyer. It is, perhaps, unlikely that the buyer failed to use commercially reasonable

efforts to develop the antibody, given the buyer’s financial interest in monetizing the

antibody. However, here the parties have defined “commercially reasonable efforts”

as “the exercise of such efforts and commitment of such resources by a company

with substantially the same resources and expertise as [the buyer], with due regard

to the nature of efforts and cost required for the undertaking at stake.” 1 This rather

inartful draftsmanship appears to create a standard based on the effort that companies

similarly situated in the market employ, or would employ. The Plaintiffs, in the

Complaint, point to other companies and their efforts to develop similar medical

treatments, as exemplars against which the Defendants efforts fall short. In briefing,

the Defendants point to dissimilarities between the buyer and its products, and the

exemplars and their products. These dissimilarities, according the Defendants,

render the Plaintiffs’ exemplars contractually irrelevant. That may ultimately prove

1
Compl. ¶ 74.

2
true. At the pleadings stage, however, I must employ plaintiff-friendly inferences,

consonant with which I find that the Defendants have only identified factual issues

that may be resolved when a record is created. The Plaintiffs have stated a claim for

breach of contract, and the Motion to Dismiss that claim is denied. However, other

ancillary claims must be dismissed. My reasoning follows.

I. BACKGROUND

The Plaintiffs, Jeff Himawan, Josh Targoff, and Stephen Tullman, are

appointed representatives of the former stockholders of Ception Therapeutics, Inc.

(“Ception”).2 Ception was acquired by Defendant Cephalon, Inc. (“Cephalon”) in

February 2010. 3 Both companies were organized under Delaware law. 4 The merger

agreement governing that acquisition forms the basis of this litigation. Later, in

October 2011, Cephalon itself was acquired by Defendant Teva Pharmaceutical

Industries Ltd. (“Teva Ltd.”), an Israeli company that lists its principal place of

business in Petah Tikva, 5 Israel.6 Teva Ltd. has filed a Motion to Dismiss for lack

of personal jurisdiction under Court of Chancery Rule 12(b)(2) and for failure to

state a claim under Rule 12(b)(6). 7 Cephalon and Defendant Teva Pharmaceuticals

2
Id. ¶¶ 20–23.
3
Id. ¶ 71.
4
Id. ¶¶ 19, 24.
5
And not Beit Hatikva, Israel, which, I note, is spelled with a “B.”
6
Compl. ¶¶ 26, 77.
7
See Def. Teva Ltd. Mot. to Dismiss.

3
USA, Inc. (“Teva USA”), a Delaware corporation and a wholly owned subsidiary of

Teva Ltd., 8 have also filed a Motion to Dismiss under Rule 12(b)(6).9

On a Rule 12(b)(6) motion to dismiss, the Court must assume as true all well-

pleaded allegations of fact in the complaint, and accept as true all inferences that can

be reasonably drawn in favor of the plaintiff from those well-pleaded allegations of

fact.10 The Court does not normally consider documents extrinsic to the complaint,

with the exception of “documents[s] integral to a plaintiff’s claim and incorporated

into the complaint.”11 As a result, the factual background that follows relies only on

the Plaintiffs’ Complaint, which this Court accepts as true for purposes of the

motions before it.

A. Ception Acquires the Rights to “RSZ” and Pursues a Sale

In 2004, Plaintiff Stephen Tullman and others formed Ception, 12 and through

Ception they licensed the rights to Rezlizumab (“RSZ”), an antibody. 13 Ception

sought to develop and commercialize RSZ as a treatment for eosinophilic asthma

(“EA”) and for eosinophilic esophagitis14 (“EoE”). 15 Ception took such steps as

8
Compl. ¶¶ 9, 24, 27.
9
See Defs. Cephalon and Teva USA Mot. to Dismiss.
10
LeCrenier v. Cent. Oil Asphalt Corp., 2010 WL 5449838, at *3 (Del. Ch. Dec. 22, 2010).
11
Orman v. Cullman, 794 A.2d 5, 15–16 (Del. Ch. 2002).
12
Compl. ¶ 19.
13
To be precise, RSZ is an “anti-interleukin 5 monoclonal antibody.” Id. ¶ 3.
14
“EoE is a chronic disorder of the digestive system in which large numbers of a particular type
of white blood cells called eosinophils are present in the esophagus.” Id.
15
Id. ¶ 42.

4
qualifying RZA for certain Food and Drug Administration (“FDA”) development

programs, 16 submitting data to the FDA, 17 and gaining FDA approval for clinical

trials of RZA. 18 Ception designed three clinical trials, two trials for the treatment of

EoE and one trial for the treatment of EA. 19 The EA clinical trial and one EoE

clinical trial were designed to measure improvements in defined endpoints (an

“endpoint study”). 20 The other EoE clinical trial was an “open label extension study”

and was designed to measure long term safety and efficacy of RSZ, 21 whereby, after

the completion of the EoE endpoint study, its participants would be invited to

continue receiving RZA. 22

In 2008, after the FDA had approved the clinical trials, but before Ception

began conducting them, Ception was approached separately by Wyeth

Pharmaceuticals, Inc. and Cephalon to conduct a sale.23 In January 2009, Ception

entered into an option agreement with Cephalon (the “Option Agreement”). 24 Under

the Option Agreement, Cephalon paid $100 million for the option to acquire Ception

16
Such as the Orphan Drug Designation Program, which provided incentives to develop drugs for
rare diseases. See id. ¶¶ 43–46.
17
Id. ¶ 48.
18
Id.
19
Id. ¶ 47.
20
The EA endpoint study had one endpoint, improvement in the participant’s responses to an
asthma questionnaire. Id. ¶ 51. The EoE endpoint study had two endpoints, changes in the
participant’s esophageal eosinophil levels and changes in physicians’ assessments of the
participants. Id. ¶ 49.
21
Id. ¶¶ 49–51.
22
Id. ¶ 86.
23
Id. ¶ 52.
24
Id. ¶ 57.

5
for a further $250 million.25 The prospective acquisition would be made pursuant to

a pre-agreed form of merger agreement, which included potential milestone

payments to Ception stockholders totaling $550 million; the milestone payments, in

large part, related to the development and commercialization of RZA by Cephalon.26

As part of the Option Agreement, Cephalon also loaned Ception $25 million to help

conduct the clinical trials.27 The exercise period for Cephalon’s option to purchase

Ception was tied to the completion of the EoE endpoint study. 28

B. The Merger of Ception and Cephalon

The EoE endpoint study was completed in October 2009; the study met one

of its two endpoints.29 The completion of the study triggered the exercise period for

Cephalon’s option to acquire Ception.30 However, Ception agreed to extend the

exercise period until after the EA endpoint study was also concluded. 31 The EA

endpoint study was completed in February 2010; the study missed its only

endpoint. 32 With knowledge of both studies, Cephalon decided to exercise its option

25
Id. ¶ 58.
26
Id. ¶¶ 59, 60.
27
Id. ¶ 62.
28
Id. ¶ 58. According to the Option Agreement, Cephalon had fifteen days to exercise its option
to purchase Ception after being notified that the EoE endpoint study had met its endpoints, or thirty
days if the endpoints had not been met. Id.
29
Id. ¶¶ 64–66.
30
Under the option agreement, as the EoE endpoint study had not met both its endpoints, Cephalon
had thirty days after the conclusion of the EoE endpoint study to decide whether to exercise the
option. Id. ¶ 68.
31
Id.
32
Id. ¶ 69.

6
to acquire Ception, pursuant to an amended version of the form of merger agreement

(the “Merger Agreement”). 33

Under the Merger Agreement, Cephalon would pay Ception stockholders

$250 million at closing. 34 Following closing, Cephalon would pay up to $550

million in milestone payments to the now-former stockholders of Ception.35 The

milestone payments (the “Milestones”) were: (A) $150 million for FDA approval of

RSZ as treatment for EoE, (B) $50 million for the European Commission’s grant of

marketing authorization of RSZ for the treatment of EoE, (C) $50 million for the

completion of the EA endpoint study, 36 (D) $150 million for FDA approval of any

asthma indication for RSZ, (E) $50 million for the European Commission’s grant of

marketing authorization of RSZ for the treatment of any asthma indication, and (F)

$100 million for FDA approval of an Oral Anti-TNF Product. 37

The development and monetization of new medical treatments involves

substantial risk, risk the parties attempted to allocate by their agreement. As laid out

33
Id. ¶¶ 71, 72.
34
Id. ¶ 73.
35
Id.
36
The only notable difference between the form of merger agreement in the Option Agreement
and the Merger Agreement was a change in the definition of the milestone payment related to the
EA endpoint study. As discussed, the exercise period for the option was extended to allow Ception
to complete the EA endpoint study, and the study was thus completed before the Merger
Agreement. The change in definition effectively eliminated the $50 million milestone payment
envisioned in the form of merger agreement for completion of the EA endpoint study. Id. ¶¶ 72,
73.
37
Id. ¶ 73. The “Oral Anti-TNF Product” is unrelated to RSZ, and is otherwise not defined in the
record. Id. ¶ 60.

7
above, the initial payment to Ception stockholders was relatively modest, while a

large part of the purchase price was contingent on the success of RSZ. To

recapitulate, RSZ was seen as a potential treatment for two conditions, a type of

asthma, EA, and an inflammation of the esophagus, EoE. In the Merger Agreement,

Cephalon agreed if certain Milestones related to RSZ as a treatment for those two

conditions were reached, it would pay former stockholders of Ception additional

lump sums. If RSZ was approved as a treatment for EoE by both the FDA and the

European Commission, then Cephalon would pay former stockholders of Ception a

total of $200 million, according to Milestones (A) and (B). If RSZ was approved as

a treatment for EA by both the FDA and the European Commission, then Cephalon

would pay former stockholders of Ception a total of $200 million, according to

Milestones (D) and (E).

According to Section 3.4(a)(iii) of the Merger Agreement, Cephalon was

required to use “commercially reasonable efforts to develop and commercialize (or

cause the development and commercialization of) [RSZ] so as to achieve the

Developmental Milestones set forth in clauses (A) through (E);” these are

Milestones (A)-(E) referenced above.38 “Commercially reasonable efforts” was

defined “for purposes of . . . Section 3.4” as “the exercise of such efforts and

commitment of such resources by a company with substantially the same resources

38
Id. ¶ 74.

8
and expertise as Parent, with due regard to the nature of efforts and cost required for

the undertaking at stake.”39

Under Section 3.4(c) of the Merger Agreement, “(i) . . . control of the

Surviving Corporation . . . shall rest with Parent . . . and the [former stockholders]

shall have no right object to the manner in which business of the Surviving

Corporation is conducted . . . and (ii) Parent shall have complete discretion with

respect to all decisions related to the business of the Surviving Corporation . . . .” 40

The Merger Agreement was signed on March 10, 2010.41

C. Cephalon’s Post-Merger Efforts and the Acquisition of Cephalon by Teva
Ltd.

In May 2011, Teva Ltd. announced it was acquiring Cephalon at an enterprise

value of $6.8 billion.42 Teva Ltd. completed its acquisition of Cephalon in October

2011, and Cephalon became a wholly owned subsidiary of Teva Ltd. 43 After the

acquisition, Tullman met with Teva leadership 44 more than a dozen times between

2012 and 2016 to discuss the development and commercialization of RSZ, 45

39
Id.
40
Id. ¶ 75.
41
The Complaint does not actually provide the date the merger was closed, only that Cephalon
decided to exercise its option to buy Ception in February 2010. Id. ¶ 71. However, the Merger
Agreement, which is dated March 10, 2010, was incorporated into the Complaint. Id. at Ex. A.
42
Id. ¶ 77.
43
Id.
44
The Complaint does not distinguish between Defendants Teva Ltd. and Teva USA in this regard;
presumably, then, the Plaintiffs refer to leadership of both entities. See id. ¶ 99.
45
Id.

9
including for the treatment of EoE. 46 In 2015, Teva Ltd. acquired Allergan Generics

in a transaction valued at $40.5 billion; Teva Ltd. announced that as a result of the

transaction it “planned for 1,500 generic launches globally in 2017.” 47

Cephalon and Teva48 continued to develop and commercialize RZA for EA;49

in March 2016, Teva Ltd. announced FDA approval for RZA as a treatment for EA;50

and in August 2016, Teva Ltd. received approval from the European Commission to

market RSZ as an EA treatment. 51 These were Milestones (D) and (E) of the Merger

Agreement. Teva USA made the related Milestone payments to the former

stockholders of Ception,52 totaling $200 million.

When Teva Ltd. acquired Cephalon, the EoE open label extension study was

ongoing. 53 Data collection for the study was substantially completed in January

2012, but Cephalon did not immediately submit the results to the FDA. 54 In 2012,

Congress passed the Food and Drug Safety and Innovation Act (“FDSIA”), which

created new development programs for certain types of drugs; Cephalon did not

46
Id. ¶ 100.
47
Id. ¶¶ 104, 105.
48
The Complaint again does not distinguish between Defendants Teva Ltd. and Teva USA in this
regard; presumably, then, both entities worked to develop and commercialize RZA for EA. See id.
¶ 78.
49
Id.
50
Id. ¶ 81.
51
Id. ¶ 82.
52
Id. ¶ 84.
53
Id. ¶¶ 50, 63, 85.
54
Id. ¶ 92.

10
attempt to designate RSZ as a treatment for EoE under any of these new programs.55

One of the researchers who helped conduct the EoE open label extension study

continued to use RSZ to treat patients with EoE; and in February and March 2016

the researcher independently published and presented positive results for RSZ as a

treatment for EoE. 56 In March 2016, Cephalon and Teva Ltd. submitted the results

of the EoE open label extension study to the FDA, although not all the data collected

was submitted.57

On October 10, 2016, Plaintiff Himawan wrote to Francine Del Ricci, then a

Senior Vice President at Teva USA, 58 and specifically asked about Cephalon’s and

Teva Ltd.’s efforts to commercialize and develop RSZ as a treatment for EoE. 59 Del

Ricci replied on November 3, 2016.60 Del Ricci wrote, in pertinent part:

Cephalon has the obligation under its March 10, 2010 Merger
Agreement with Ception to use commercially reasonable efforts to
develop and commercialize [RSZ]. However, the Merger Agreement
goes on to provide that Cephalon will have “complete discretion with
respect to all decisions relating to the research, development,
manufacture, marketing, pricing and distribution of [RSZ] . . . and shall
have no obligation to conduct clinical trials related to, or otherwise
pursue regulatory approvals of, any indication for [RSZ] . . . or
otherwise take any action to protect, attain or maximize any payment

55
Id. ¶¶ 111, 112.
56
Id. ¶¶ 96–98.
57
Id. ¶¶ 92–94.
58
Tullman had previously corresponded with Del Ricci in 2013 about RSZ. Del Ricci’s position
at that time was Vice President of Corporate Alliance Management & Pipeline Governance at Teva
USA. Id. ¶ 102.
59
Id. ¶ 106.
60
Id. ¶ 106; id. at Ex. C.

11
 to be received by the holders of Stock Certificates and Stock
Agreements pursuant to this Section 3.4.”

In any event, it would not be commercially reasonable for Cephalon to
develop [RSZ] for [EoE] for numerous reasons, including the need to
commit substantial resources that such an undertaking would require in
light of other ongoing development and portfolio-building initiatives of
the company. 61

In other words, Del Ricci revealed that Cephalon had abandoned its efforts to

develop and commercialize RSZ as a treatment for EoE. 62 Pharmaceutical

companies Shire,63 Sanofi and Regeneron, 64 Celgene,65 and GlaxoSmithKline,66

have substantially similar resources and expertise to Cephalon and are currently

pursuing products for treatment of EoE. 67

D. Procedural History

The Plaintiffs filed the Complaint in this action on February 1, 2018.

Cephalon and Teva USA filed a Motion to Dismiss on February 28, 2018. Teva Ltd.

61
Rather than reproduce the segments of Del Ricci’s response provided in the Complaint, I have
reproduced a fuller response, which was incorporated into the Complaint. Id. at Ex. C; see id. ¶¶
106, 107.
62
Id. ¶ 17.
63
Shire has received FDA Breakthrough Therapy designation for its EoE treatment, which is
currently in a Phase III clinical trial. Id. ¶ 109a.
64
Sanofi and Regeneron are planning Phase III trials for their EoE treatment in 2018. Id. ¶ 109b.
65
Celgene has completed a Phase II trial for its EoE treatment and is currently conducting an open
label extension study. Id. ¶ 109c.
66
GlaxoSmithKline has received FDA approval for “Nucala” to “treat eosinophilic granulomatosis
with polyangiitis” and is now seeking FDA “approval of Nucala as an add on treatment for patients
who have COPD with an eosiniphilic phenotype.” Id. ¶ 109d.
67
Id. ¶ 109.

12
filed a Motion to Dismiss on April 10, 2018. I heard oral argument on both Motions

to Dismiss on September 21, 2018.

II. LEGAL ANALYSIS

The Plaintiffs bring a breach of contract claim against Defendant Cephalon,

alleging that by abandoning efforts to develop and commercialize RSZ as a treatment

for EoE, Cephalon breached the Merger Agreement. The Plaintiffs also bring a

claim for breach of implied covenant of good faith and fair dealing against Cephalon,

to the extent Cephalon’s conduct is not covered by the Merger Agreement. Finally,

the Plaintiffs bring a tortious interference with contract claim against Defendants

Teva USA and Teva Ltd., arguing that they intentionally interfered with Cephalon’s

ability to meet its obligations under the Merger Agreement. The Plaintiffs seek,

among other things, monetary relief in the amount of the Milestone payments related

to EoE and a grant of the rights to RSZ. 68

In response, the Defendants have filed Motions to Dismiss all of the claims

brought by the Plaintiffs. Cephalon argues, pursuant to Rule 12(b)(6), that the

Plaintiffs failed to state a claim that Cephalon breached the Merger Agreement;

specifically, that the Plaintiffs did not sufficiently plead that Cephalon failed to use

“commercially reasonable efforts.” Cephalon also argues, under Rule 12(b)(6), that

the Plaintiffs failed to state a claim for breach of implied covenant of good faith and

68
Id. ¶¶ 38–39.

13
fair dealing because there was no room in the Merger Agreement for such an implied

covenant and, in any event, there was no bad faith. Teva Ltd. argues, pursuant to

Rule 12(b)(2), that it should be dismissed from this action because Teva Ltd., an

Israeli company, is not subject to personal jurisdiction in Delaware. Teva USA and

Teva Ltd. argue, pursuant to Rule 12(b)(6), that the Plaintiffs made only conclusory

allegations that Teva USA and Teva Ltd. “direct[ed] Cephalon to abandon . . . RSZ

for EoE,” and that therefore the Plaintiffs failed to state a claim for tortious

interference with contract. 69 Finally the Defendants together argue that all claims

against them should be dismissed because the Plaintiffs acquiesced and the

Defendants relied on the Plaintiffs’ apparent consent to their efforts to develop RSZ.

I begin with Cephalon’s Motion to Dismiss.

A. Cephalon’s Rule 12(b)(6) Motion to Dismiss the Counts of Breach of
Contract and Breach of Implied Covenant of Good Faith and Fair Dealing

1. Legal Standard

Defendant Cephalon has moved to dismiss the counts of breach of contract

and breach of implied covenant of good faith and fair dealing. Cephalon does so

pursuant to Rule 12(b)(6). A motion to dismiss for failure to state a claim must be

denied “unless the plaintiff could not recover under any reasonably conceivable set

69
Id. ¶ 138.

14
of circumstances susceptible of proof.”70 During this inquiry, the Court accepts all

well-pleaded allegations in the complaint as true and draws all reasonable inferences

in favor of the Plaintiff.71 However, “[c]onclusory allegations unsupported by

specific factual allegations will not be accepted as true.”72 A claim for breach of

contract requires: “(1) a contractual obligation; (2) a breach of that obligation by the

defendant; and (3) a resulting damage to the plaintiff.” 73 A claim for breach of

implied covenant of good faith and fair dealing requires a similar showing, except

that the obligation is a “specific implied contractual obligation.” 74

2. The Plaintiffs Stated a Claim for Breach of Contract

Cephalon argues that the Plaintiffs failed to state a claim for breach of contract

because the Plaintiffs failed to plead facts sufficient to establish that Cephalon did

not use “commercially reasonable efforts” to develop and commercialize RSZ for

EoE, as was their contractual obligation per the Merger Agreement. Furthermore,

Cephalon argues that the Complaint shows Cephalon actually used commercially

reasonable efforts as it developed and commercialized RSZ as a treatment for EA.

70
Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 536 (Del.
2011).
71
Id.
72
LeCrenier v. Cent. Oil Asphalt Corp., 2010 WL 5449838, at *3 (Del. Ch. Dec. 22, 2010).
73
Cedarview Opportunities Master Fund v. Spanish Broad., Inc., 2018 WL 4057012, at *6 (Del.
Ch. Aug. 27, 2018) (internal quotations omitted).
74
The elements for breach of implied covenant of good faith and fair dealing are “a specific
implied contractual obligation, a breach of that obligation by the defendant, and resulting damage
to the plaintiff.” NAMA Holdings, LLC v. Related WMC LLC, 2014 WL 6436647, at *16 (Del. Ch.
Nov. 17, 2014) (internal quotations omitted).

15
In response, the Plaintiffs point to allegations in their Complaint that studies showed

positive results for RSZ as a treatment for EoE75 and that Cephalon could have

submitted RSZ for certain FDA development programs; and that despite the promise

of and opportunities for RSZ, Cephalon chose to abandon efforts to commercialize

and develop RSZ for EoE. Additionally, the Plaintiffs point out that the Merger

Agreement required Cephalon to use commercially reasonable efforts to achieve the

Milestones related to RSZ for EoE, and not just for RSZ for EA. To determine

whether the Plaintiffs sufficiently pled that Cephalon breached their contractual

obligation, I turn first to the contractual obligation.

“Commercially reasonable efforts” is defined in the Merger Agreement as

“the exercise of such efforts and commitment of such resources by a company with

substantially the same resources and expertise as [Cephalon], with due regard to the

nature of efforts and cost required for the undertaking at stake.”76 There is no dispute

that this is an objective standard. Furthermore, it is undisputed that other provisions

in the Merger Agreement gave Cephalon sole discretion to decide how to proceed

with RSZ. That discretion, however, was cabined by the objective standard. Thus

the question remains what was required from Cephalon under this standard.

75
Cephalon suggests that results of the EoE endpoint study result were not positive because the
study missed one of its two endpoints. However, the EA endpoint study missed its only endpoint
and yet Cephalon was still able to commercialize and develop RZA for EA. As a result, and given
the pleadings stage of this action, I will assume that the studies showed positive support for RSZ
as a treatment for EoE.
76
Compl. ¶ 74.

16
 Contract interpretation “is a question of law and thus suitable for

determination on a motion to dismiss.”77 “If the contractual language is ‘clear and

unambiguous,’ the ordinary meaning of the language generally will establish the

parties’ intent.”78 However, where there is ambiguity, “[o]n a motion to dismiss, a

trial court cannot choose between two different reasonable interpretations of an

ambiguous document.” 79 The Plaintiffs argue that Cephalon was obligated to pursue

the development and commercialization of RSZ as a treatment for EoE under all

circumstances.80 The Merger Agreement is clear and unambiguous in this regard:

Cephalon was obligated to use only “commercially reasonable efforts,” as defined,

and was not obligated to pursue RSZ as a treatment for EoE to all ends. However,

it is not clear and unambiguous, at this stage in the pleadings, what additional

obligation “the exercise of such efforts and commitment of such resources by a

company with substantially the same resources and expertise as [Cephalon]”

imposes on Cephalon. This contractual language presumptively has meaning.81 If I

were faced with two reasonable interpretations of ambiguous contractual language

77
Narrowstep, Inc. v. Onstream Media Corp., 2010 WL 5422405, at *7 (Del. Ch. Dec. 22, 2010)
78
Id.
79
Id.
80
At Oral Argument, counsel for the Plaintiffs stated that “[t]he reference to similarly situated
companies is to talk about a resource, that resources must be expended in an absolute affirmative
effort to advance RSZ for EoE. It must occur.” Transcript of Oral Argument at 34:22–35:2.
81
“We will not read a contract to render a provision or term ‘meaningless or illusory.’” Osborn ex
rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010) (quoting Sonitrol Holding Co. v. Marceau
Investissements, 607 A.2d 1177, 1183 (Del. 1992)).

17
on a motion to dismiss, I would have to deny that motion. Here, as of yet, neither

side has convincingly suggested a reasonable interpretation of this language,82 a fact

which similarly supports denial of a motion to dismiss. One reasonable

interpretation, I suspect, is to treat the language as intending to define “commercially

reasonable efforts” as those efforts “a company with substantially the same resources

and expertise as [Cephalon]” would expend under the circumstances at hand; such

a definition, again supports denial of the Defendants’ Motion to Dismiss. Before

denying the Motion, however, I analyze whether that language is implicated in the

alleged breach of contract.

On many occasions, this Court has dealt—indeed wrestled—with contractual

obligations in merger agreements made subject to varying “efforts clauses” imposed

82
See Transcript of Oral Argument at 32:23–40:3, 50:8–52:7.

18
on the acquiring party. 83 While some cases required factual inquiry and even trial,84

others could be (and were) resolved at the pleadings stage.85 Cephalon explained to

the Plaintiffs in its November 3, 2016 letter that “it would not be commercially

reasonable for Cephalon to develop [RSZ] for [EoE] for numerous reasons,

including the need to commit substantial resources that such an undertaking would

require in light of other ongoing development and portfolio-building initiatives of

83
For example, in Alliance Data Systems Corp. v. Blackstone Capital Partners V L.P., there was
an obligation to use “reasonable best efforts,” which “[a]lthough it does not have a specific
meaning . . . is, at least, clearly understood by transactional lawyers to be less than an unconditional
commitment. 963 A.2d 746, 763 n.60 (Del. Ch. 2009). In Ev3, Inc. v. Lesh there was an obligation
to act in “good faith,” and the Delaware Supreme Court found that it would not “constitute bad
faith . . . to refuse to proceed . . . if the pursuit, after taking into account the milestones and
development costs, was not expected to yield . . . a commercially reasonable profit . . . .” 114 A.3d
527, 541 (Del. 2014). In Williams Companies, Inc. v. Energy Transfer Equity L.P. the Delaware
Supreme Court found that provisions that obligated “reasonable best efforts” and “commercially
reasonable efforts” together “placed an affirmative obligation on the parties to take all reasonable
steps.” 159 A.3d 264, 273 (Del. 2017). For a description of the various standards of “efforts
clauses” as defined by certain practitioners and a description of the Delaware Supreme Court’s
ruling in Williams on “commercially reasonable efforts,” see Akorn, Inc. v. Fresenius Kabi AG,
2018 WL 4719347, at *86–88 (Del. Ch. Oct. 1, 2018). What these various obligations or “efforts
clauses” require also depend on the context of the obligation. In Williams, for example, the context
was obligations in a merger agreement to expend efforts to achieve necessary pre-requisites for
closing, specifically “an affirmative obligation on the parties to take all reasonable steps to obtain
[a tax] opinion and otherwise complete the transaction.” Williams, 159 A.3d at 273. By contrast,
here, the obligation in the merger agreement is to expend efforts post-merger and is directed at the
discretionary business decisions of the merged corporation.
84
As the Plaintiffs highlight in their briefing, several notable cases on “efforts clauses” went to
trial. See e.g., Williams Cos., Inc. v. Energy Transfer Equity, L.P., 2016 WL 3576682 (Del. Ch.
June 24, 2016), aff’d, 159 A.3d 264 (Del. 2017); WaveDivision Holdings, LLC v. Millennium Dig.
Media Sys. L.L.C., 2010 WL 3706624 (Del. Ch. Sept. 17, 2010); Hexion Specialty Chems., Inc. v.
Huntsman Corp., 965 A.2d 715 (Del. Ch. 2008).
85
See, e.g., Alliance Data Sys. Corp., 963 A.2d 746 (granting a motion to dismiss a breach of
contract claim where there was an obligation to use “reasonable best efforts”); Sparton Corp. v.
O’Neil, 2017 WL 3421076 (Del. Ch. Aug. 9, 2017) (granting a motion to dismiss a breach of
contract claim where there was an obligation to use “commercially reasonable efforts”).

19
the company.” 86 The Plaintiffs allege that there was promise and opportunity in RSZ

as a treatment for EoE. However, as Cephalon points out, the Plaintiffs have not

made any allegations that pursuing such promise and opportunity was commercially

reasonable “with due regard to the nature of efforts and cost required for the

undertaking at stake.” 87 That is, the Plaintiffs have not alleged any facts that

controvert Cephalon’s stated economic rationale for abandoning RSZ as a treatment

for EoE.

If taking into account the “nature of efforts and cost” was all that was required

of Cephalon, it might be appropriate and consistent with this Court’s prior rulings to

grant a motion to dismiss for failure to state a claim in this instance, as the Plaintiffs

did not allege facts from which to reasonably infer that the “nature of efforts and

cost” supported continued efforts. However, Cephalon was also obligated to

“exercise . . . such efforts and commit[] . . . such resources [as] a company with

substantially the same resources and expertise as [Cephalon].” 88 In their Complaint,

the Plaintiffs alleged that several companies with substantially the same resources

and expertise as Cephalon are currently working to develop treatments for EoE. I

assume that one reasonable reading of the contractual language here is that the

actions of other similarly situated companies are a relevant yardstick to decide at this

86
Compl. ¶¶ 106, 107; id. at Ex. C.
87
Id. ¶ 74.
88
Id.

20
stage in the pleadings whether Cephalon itself used “commercially reasonable

efforts.” At Oral Argument, the Defendants argued that, even so, the exemplars in

the Complaint are not similar to the Defendant entities, and are not pursuing approval

of the same antibody. The Defendants conclude that the actions of these companies

are ultimately irrelevant to the reasonableness inquiry here. Perhaps so. However,

at the pleading stage, I find that the allegation that similarly situated companies are

pursuing treatments for EoE reasonably supports the inference that Cephalon, in

doing otherwise, did not meet its contractual responsibility here.

In light of the absence of reasonable interpretations of the contractual

obligation to “exercise [ ] such efforts and commit[ ] such resources by a company

with substantially the same resources and expertise as Parent, with due regard to the

nature of efforts and cost required for the undertaking at stake,” the relative novelty

of this contractual obligation, and the Plaintiffs’ allegations that companies with

similar resources and expertise as Cephalon are currently developing treatments for

EoE, I cannot say that the Plaintiffs cannot recover under any reasonably

conceivable set of circumstances susceptible of proof. As a result, the Motion to

Dismiss as it relates to the breach of contract claim brought against Cephalon must

be denied.

21
 3. The Plaintiffs Failed to State a Claim for Breach of Implied
Covenant of Good Faith and Fair Dealing

Defendant Cephalon moved to dismiss the claim of breach of implied

covenant of good faith and fair dealing. “When presented with an implied covenant

claim, a court first must engage in the process of contract construction to determine

whether there is a gap that needs to be filled.”89 That is, “because the implied

covenant is, by definition, implied, and because it protects the spirit of the agreement

rather than the form, it cannot be invoked where the contract itself expressly covers

the subject at issue.”90

Here, the subject at issue is Cephalon’s efforts (or lack thereof) to

commercialize and develop RSZ for EoE. Cephalon argues that the parties to the

Merger Agreement expressly chose an objective standard, “commercially reasonable

efforts,” as defined in the Agreement, to measure Cephalon’s efforts, and that this

standard leaves no “gap” for an implied term. The Plaintiffs, in turn, argue that they

“reasonably expect[ed] that Cephalon would take affirmative steps to develop and

commercialize RSZ for EoE” and “Cephalon’s refusal to develop and commercialize

RSZ for EoE is unreasonable and arbitrary, and intentionally designed to avoid

achieving [the Milestones in the Merger Agreement and making the associated

89
Allen v. El Paso Pipeline GP Co., L.L.C., 2014 WL 2819005, at *10 (Del. Ch. June 20, 2014).
90
Id. (quoting Fisk Ventures, LLC v. Segal, 2008 WL 1961156, at *10 (Del. Ch. May 7, 2008)).

22
payments] . . . .” 91 The Plaintiffs contend that there is no language in the Merger

Agreement to address such behavior.

The Plaintiffs have not, however, identified a gap in the Merger Agreement,

and there is therefore no role for the implied covenant of good faith and fair dealing.

Cephalon and the Plaintiffs contracted for a series of Milestones and related

payments, and Cephalon agreed to use “commercially reasonable efforts” to achieve

those Milestones. “Commercially reasonable efforts,” as defined by the Agreement,

is an objective standard. Cephalon did not meet the Milestones related to RSZ as a

treatment for EoE and the Plaintiffs cried foul. The Agreement set a contractual

standard by which to evaluate whether Cephalon’s failure to achieve and pay these

Milestone payments was improper.92 The standard (once adequately construed) is

applicable and relevant, even if Cephalon’s failure to achieve the Milestones was

based on complete inaction or if it was based on Cephalon’s opinion that the

Milestone payments would make the endeavor uneconomical. As such, in the light

most favorable to the Plaintiffs, there is nevertheless no gap.

Through their claim of breach of an implied covenant of good faith and fair

dealing, the Plaintiffs seek to impose an alternative standard with which to review

91
Compl. ¶¶ 129, 130.
92
Here, I paraphrase Chancellor Bouchard in Fortis Advisors LLC v. Dialog Semiconductor PLC.
2015 WL 401371, at *5 (Del. Ch. Jan. 30, 2015) (“Thus, the Merger Agreement sets a contractual
standard by which to evaluate if Dialog's failure to achieve and pay the earn-out payments in its
operation of the Power Conversion Business Group was improper.”).

23
Cephalon’s efforts. To the extent I understand the Plaintiffs’ view, this alternative

standard prohibits Cephalon from abandoning efforts to develop and commercialize

RSZ for EoE because that abandonment could never be “commercially reasonable”

in light of the associated Milestone payments.93 But this contradicts the express

understanding of the parties.

The Plaintiffs, having agreed to the Milestones being contingent on

Cephalon’s “commercially reasonable efforts,” cannot now contend that they did not

actually expect any contingency. “The implied covenant of good faith and fair

dealing . . . serves a gap-filling function by creating obligations only where the

parties to the contract did not anticipate some contingency, and had they thought of

it, the parties would have agreed at the time of contracting to create that

obligation.”94

Ception and Cephalon negotiated over the Milestones in the Merger

Agreement, and the bargained-for language requires Cephalon to use “commercially

93
The Plaintiffs cite the Delaware Supreme Court for the proposition that “[s]ophisticated parties
in competitive negotiations ‘do not include obvious and provocative conditions’ in their
agreements.” Pls. Br. in Opp’n to Defs.’ Mot. to Dismiss at 38 (quoting Dieckman v. Regency GP
LP, 155 A.3d 358, 368 (Del. 2017)). Plaintiffs then claim that an “obvious and provocative”
condition in this case would be “Cephalon will not act in an unreasonable and arbitrary manner to
intentionally avoid achieving Development Milestones in order to avoid making Development
Milestone Payments.” Id. The Plaintiffs define their own position to be “that Cephalon
deliberately thwarted the clinical approval process in order to avoid making contractually
mandated payments to the former stockholders.” Id.
94
Am. Capital Acquisition Partners, LLC v. LPL Holdings, 2014 WL 354496, at *5 (Del. Ch. Feb.
3, 2014).

24
reasonable efforts” to achieve those Milestones. I have found that a claim for breach

of contract based on that “commercially reasonable efforts” standard survives the

Defendants’ Motion to Dismiss and may proceed past the pleadings stage. However,

no gap exists within which to employ implication, and the implied covenant claim

must be dismissed.95

B. Teva Ltd. and Teva USA’s Rule 12(b)(6) Motion to Dismiss the Count of
Tortious Interference with Contract

1. Legal Standard

Defendants Teva Ltd. and Teva USA argue that the tortious interference with

contract claim against them should be dismissed for failure to state a claim, pursuant

to Rule 12(b)(6). I have already reviewed the applicable legal standard for Rule

12(b)(6) above. A claim for tortious interference with contract requires a showing

that: “(1) there was a contract, (2) about which the particular defendant knew, (3) an

intentional act that was a significant factor in causing the breach of contract, (4) the

act was without justification, and (5) it caused injury.” 96

Teva Ltd. is an Israeli company. Its principal place of business is Petah Tikva,

Israel. 97 In addition to moving to dismiss under Rule 12(b)(6), Teva Ltd. also moved

to dismiss on the ground of lack of personal jurisdiction under Rule 12(b)(2).

95
“[T]he implied covenant is not a license to rewrite contractual language just because the plaintiff
failed to negotiate for protections that, in hindsight, would have made the contract a better deal.”
Winshall v. Viacom Intern., Inc., 55 A.3d 629, 637 (Del. Ch. 2011).
96
WaveDivision Holdings, LLC v. Highland Capital Mgmt., L.P., 49 A.3d 1168, 1174 (Del. 2012).
97
“Such a city, everybody loves it.” See David Yazbek, The Band’s Visit (Broadway 2017).

25
Logically, this defense should be examined first, as absent jurisdiction any resolution

of the Rule 12(b)(6) motion with respect to Teva Ltd. would be moot. In this case,

however, the jurisdictional issues, involving Teva Ltd.’s business-related actions

within this jurisdiction and its alleged contractual waiver of jurisdictional defenses,

are complex. Moreover, the Rule 12(b)(6) defense mounted by Teva Ltd. is

practically indistinguishable from that raised by Teva USA, jurisdiction over which

is unquestioned; in other words, the Rule 12(b)(6) defense must be engaged whether

or not Teva Ltd. remains in the case. Because I find that I must dismiss the claims

against both Teva entities under Rule 12(b)(6), I need not reach the jurisdictional

defense.

Returning to the Rule 12(b)(6) Motions to Dismiss, Teva Ltd. and Teva USA

are affiliates of Cephalon. “The gist of a well-pleaded complaint for interference by

a corporation of a contract of its affiliate is a claim that the ‘interfering’ party was

not pursuing in good faith the legitimate profit seeking activities of the affiliated

enterprises.” 98 The other side of the same coin would be that the “affiliate sought

not to achieve permissible financial goals but sought maliciously or in bad faith to

injure the plaintiff.”99 In the parent-subsidiary context, “the test for holding a parent

corporation liable for tortious interference ha[s] to be high or every-day consultation

98
Shearin v. E.F. Hutton Grp., Inc., 652 A.2d 578, 591 (Del. Ch. 1994).
99
Id.

26
or direction between parent corporations and subsidiaries about contractual

implementation would lead parents to be always brought into breach of contract

cases.”100 With that guidance in mind, I evaluate the Motions to Dismiss.

2. The Plaintiffs Failed to State a Claim of Tortious Interference
Against Teva Ltd. and Teva USA

In support of their Motions to Dismiss, Teva Ltd. and Teva USA argue that

the Plaintiffs made only conclusory allegations of bad faith in their Complaint and

thus failed to adequately plead bad faith on the part of Teva Ltd. or Teva USA. They

further argue that the Plaintiffs failed to plead any actual acts taken by either Teva

Ltd. or Teva USA in regard to the alleged breach of contract. 101 The Plaintiffs did

allege in their Complaint that Teva Ltd. and Teva USA “did not pursue the profit-

seeking objectives of Cephalon, but instead acted in bad faith to injure Plaintiffs,”102

and also alleged that “Teva Ltd. and/or Teva USA control the actions of

Cephalon.”103 The Plaintiffs disagree that their allegations are merely conclusory

and argue that their claim is a fact-intensive one that should survive a motion to

dismiss.

100
Allied Capital Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1039 (Del. Ch. 2006).
101
Teva USA and Teva Ltd. also argue that the Plaintiffs failed to adequately plead an underlying
breach of contract, which is a necessary element of a claim of tortious interference with contract.
As discussed above, I find that the Plaintiffs have, given this early stage in the pleadings, alleged
sufficient facts to defeat a motion to dismiss on the breach of contract claim.
102
Compl. ¶ 138.
103
Id. ¶ 28.

27
 The Plaintiffs argue that they have alleged, or that it can be reasonably inferred

from their allegations, that Teva Ltd. and Teva USA have taken intentional acts that

were significant factors in causing a breach of contract and did so for reasons other

than legitimate profit-seeking activities of the affiliated enterprise. In their

Complaint, the Plaintiffs aver that Teva Ltd. acquired Allergan Generics, and as a

result, Teva Ltd. planned to launch thousands of generic products. However, this

allegation says nothing of the effect of the Allergan acquisition on Cephalon and on

the Merger Agreement. The Plaintiffs ask that I infer—based on the fact that Teva

Ltd. acquired Allergan—that Teva Ltd. instructed Cephalon, an existing subsidiary,

to breach its contract with the Plaintiffs, presumably in order to focus on Teva Ltd.’s

plan for Allergan. However, I do not find it is reasonable to infer from only the fact

that a parent company acquired another subsidiary that the parent then directed a

different subsidiary to abandon its contractual obligations. Such an inference is

unreasonable, without further factual allegations linking the parent’s plans for its

new subsidiary to the parent’s plans for its existing subsidiaries. For example, there

is no allegation in the Complaint that Allergan and Cephalon are competitors, such

that it may be reasonable to infer that Teva Ltd. may prefer one to the detriment of

the other. Nor do the Plaintiffs posit in their Complaint that Teva Ltd. has

insufficient resources, such that it may be reasonable to infer that Teva Ltd.’s

acquisition and plan for Allergan would necessarily involve removing resources

28
from Teva Ltd.’s other subsidiaries. The pleading, in this regard, is simply

conclusory.

In their Complaint, the Plaintiffs also alleged that the FDA launched new

development programs and that Cephalon did not pursue a designation in these

programs for RZA as a treatment for EoE. This allegation makes no mention of

either Teva Ltd. or Teva USA. I do not find it reasonable to infer from the fact

Cephalon, a subsidiary of Teva Ltd., made a decision not to seek designation in this

program, that the decision was actually made by Teva Ltd., its parent, or Teva USA,

its affiliate, let alone that the decision was taken for reasons other than the legitimate

pursuit of their business.

Finally, the Plaintiffs alleged in their Complaint that an independent study,

performed by a former researcher of the EoE open label extension study, produced

positive results. The Plaintiffs do not allege in their Complaint that those result were

ignored by Cephalon, much less by Teva Ltd. or Teva USA. I do not find it

reasonable to infer, from a mere description of a study done independent of Cephalon

that Teva Ltd. or Teva USA took action—or; more accurately here, inaction. The

allegations that the Plaintiffs cite, even with all reasonable inferences drawn in their

favor, do not support the allegation that Teva Ltd. or Teva USA intentionally acted

to interfere with the Merger Agreement, much less that they did so in bad faith. The

allegation is therefore conclusory.

29
 The Plaintiffs also allude to their correspondence with an employee of Teva

USA about Cephalon’s efforts related to RSZ. It was this employee who told the

Plaintiffs that Cephalon would no longer pursue RSZ for EoE, effectively ending

Cephalon’s obligations in the Merger Agreement. However, it is not reasonable to

infer from those facts alone that Teva Ltd. or Teva USA, as affiliates of Cephalon,

acted with an improper purpose. The sole act of ending efforts to develop the

antibody, which Cephalon was permitted to do if development is not commercially

reasonable, cannot by itself be inferred to be improper conduct on behalf of Teva

Ltd. or Teva USA. In the parent-subsidiary or affiliate context, this Court has held

that a high standard applies; otherwise, a parent and a subsidiary would be unable to

discuss the subsidiary’s contractual obligations without pulling the parent into a

breach of contract suit. As a result, Rule 12(b)(6) requires that the tortious

interference with contract claim against Teva Ltd. and Teva USA be dismissed.

C. The Defendants Motion to Dismiss Based on the Plaintiffs’ Acquiescence

The Defendants argue that each of the Plaintiffs’ claims should be deemed

forfeited under the acquiescence doctrine. As explained above, only the Plaintiffs’

claim of breach of contract against Cephalon remains; the rest of the Plaintiffs’

claims have been dismissed. With respect to the remaining claim, dismissal based

on acquiescence is premature at this pleadings stage. “To prevail on a defense of

acquiescence, a defendant must show: “(1) the plaintiff remained silent (2) with

30
knowledge of her rights (3) and with the knowledge or expectation that the defendant

would likely rely on her silence, (4) the defendant knew of the plaintiff's silence, and

(5) the defendant in fact relied to her detriment on the plaintiff's silence.” 104

The Plaintiffs’ Complaint does not support an argument for acquiescence.

The acquiescence doctrine is particularly fact intensive, and the facts supporting

acquiescence are not in the record. As a result, I deny the Defendants’ Motion to

Dismiss based on acquiescence.

III. CONCLUSION

The count of tortious interference with contract brought against Defendants

Teva Ltd. and Teva USA is dismissed for failure to state a claim pursuant to Rule

12(b)(6). As a result, Teva Ltd.’s Motion to Dismiss for lack of personal jurisdiction

pursuant to Rule 12(b)(2) is moot. The count of breach of implied covenant of good

faith and fair dealing brought against Defendant Cephalon is also dismissed for

failure to state claim under Rule 12(b)(6). However, the count of breach of contract

brought against Cephalon survives the Defendants’ Motion to Dismiss. As a result,

the Defendants’ Motions to Dismiss are granted in part and denied in part. The

parties should provide an appropriate form of order.

104
Cedarview Opportunities Master Fund, L.P. v. Spanish Broad. Sys., Inc., 2018 WL 4057012,
at *13 (Del. Ch. Aug. 27, 2018) (internal quotations omitted).

31