The Southern District of California did an about-face after granting a TRO, and denied a preliminary injunction to stop Eli Lilly & Co from using the same 700-person sales force to market rival drugs. The court held that money damages would be adequate to remedy any loss if the plaintiff wins at trial. The forthcoming expedited appeal can be expected to shed light on a plaintiff’s burden to show irreparable harm for preliminary injunctions in the wake of the 2008 Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc., the core issue in the case -- and a crucial issue for practitioners.
The secret veil is now removed. The record in the case -- and even the names of the parties and counsel -- had been “sealed” until recently, but the case has received substantial attention based on the parties’ dueling press releases and “bootleg” copies of pleadings and court decisions in the blogosphere. With the case now unsealed, we can now see what the fuss is about.
Background: Lilly enters two contracts with rivals. In 2002, Lilly entered a collaboration agreement with Plaintiff Amylin Pharmaceuticals to sell Amylin’s type-2 diabetes treatment Byetta. The trouble started when Lilly entered a different agreement this year with Amylin competitor Boehringer Ingelheim to sell a rival diabetes drug: BI’s Tradjenta. Amylin filed suit for antitrust violations, unfair competition, Lanham Act false advertising, and breach of contract.