We've all said things we'd like to take back. Maybe it was something hurtful, said in a moment of anger to a loved one. Maybe it was a joke that landed like a brick in a toilet. Maybe it was "no band will ever reach the artistic heights of Green Day in their prime."
Maybe it was just a moderately incorrect pleading.
Last week Judge Andrews reminded us all that, at least in the latter case, you can't just ask to take it back. Surprisingly, it also teaches us that this can be a good thing.
The plaintiff in Allergan USA, Inc. et al v. Aurobindo Pharma Ltd., C.A. No. 19-1727-RGA (D. Del. Oct. 20, 2022), moved to dismiss/strike one of the defendant's (Sun's) counterclaims and related affirmative defenses for unclear hands for failure to state a claim. In opposing the motion, Sun apparently "disavowed" the theory of unclean hands it had originally pleaded.
In its Answering Brief (D.I. 358), Sun disavows the theory put forth in its Amended
Answer. Sun still asserts a claim of unclean hands, but Sun does not allege that Allergan misused confidential information it obtained from Sun during litigation. "Sun is not alleging a violation of the Stipulated Protective Order or any fraudulent use of Sun's confidential information."). Sun, instead, argues, "Allergan gleaned Sun's confidential noninfringement position from the 2020 Markman proceedings and then ran to the Patent Office to seek new claims to formulations it did not invent."
Allergan, at 5.
Plaintiffs in turn argued that this admission was grounds for dismissing the counterclaim, but judge Andrews disagreed, declining to consider the disavowal at all in deciding the motion:
I decline to read the facts or new theories from Sun's brief into Sun's Amended Answer. "As the Third Circuit has stated, '[i]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss."). This new theory and the facts supporting it are "not entitled to consideration in the pleading stage." Therefore, Sun's new theory does not factor in my determination that Sun has stated a claim that the '516 Patent is unenforceable under the doctrine of.unclean hands.
Id. (quoting M2M Sols. LLC v. Tel it Commc'ns PLC, 2015 WL 4640400, at*3 (D. Del. Aug. 5, 2015))
He then went on to deny the motion to dismiss, holding that they apparently disavowed theory was pleaded with sufficient detail.
Of course, we've yet to see what the fallout will be if Sun actually presents evidence that contradicts the theory it actually pleaded, but it was an interesting outcome nonetheless. We'll keep you posted.
P.S. Green day is still pretty good. Thank you Judge Andrews, for giving me the courage to say as much.
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