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Biod, LLC v. Amnio Technology, LLC

United States District Court, Ninth Circuit

January 24, 2014

BioD, LLC; and BioDlogics, LLC, Plaintiffs,
v.
Amnio Technology, LLC; Applied Biologics, LLC; Terrell Suddarth; Pinnacle Transplant Technologies, LLC; and Bruce Werber, D.P.M., Defendants.

ORDER

H. RUSSEL HOLLAND, District Judge.

Renewed Motion to Remand to Arbitration

Defendant Applied Biologics, LLC moves to compel arbitration.[1] This motion is opposed.[2] Oral argument was requested but is not deemed necessary.

Background

Plaintiffs are BioD, LLC and BioDlogics, LLC. BioDlogics is a wholly owned subsidiary of BioD.[3] Defendants are Amnio Technology, LLC; Applied Biologics, LLC; Terrell Suddarth; Pinnacle Transplant Technologies, LLC; and Bruce Werber, D.P.M.

"BioD is a biotechnology company engaged in the development and commercialization of novel biological products derived from the placental tissues that it recovers from live, healthy donors pursuant to informed consent."[4] BioDlogics is "responsible for the recovery, processing, and distribution of human tissue allografts."[5]

Plaintiffs allege that "[f]rom January 1, 2011 until February 2013, Plaintiff BioDlogics had a Distribution Agreement with Stromer/Southwest/Medical & Orthopedics, LLC (Stromer')...."[6] Plaintiffs further allege that "Stromer... entered into a Subdistributor Supply Agreement with Applied Biologics on July 12, 2011...."[7] The Subdistributor Supply Agreement (hereinafter "the Agreement") defines Stromer as the "Distributor" and Applied Biologics as the "Subdistributor" and provides that "Distributor and Subdistributor may be referred to herein as a Party' or, collectively, as the Parties.'"[8] The Agreement provides that "BioDlogics shall be a third party beneficiary under this Agreement. With the exception of the foregoing, nothing in this Agreement is intended to confer any benefits, rights or remedies unto any other person or entity except for the Parties and their permitted successors and assigns."[9]

Section 1.8 of the Agreement defines "confidential information" to mean

all proprietary and confidential information of a Party, including, without limitation, trade secrets, technical information, business information, sales information, customer and potential customers lists and identities, product sales plans, sublicense agreements, inventions, developments, discoveries, software, know-how, methods, techniques, formulae, data, processes and other trade secrets and proprietary ideas, whether or not protectable under patent, trademark, copyright or other areas of law, that the other Party has access to or receives.... For the avoidance of any doubt, information concerning any Product and know-how associated therewith, including, but not limited to, composition of any Product, methods of handling and storing of any Product, and methods of delivering any Product to patients shall be considered Confidential Information of BioDlogics.[10]

Section 7.1 of the Agreement provides that "[e]xcept as permitted elsewhere under this Agreement, each Party shall (a) receive and maintain Confidential Information of the other Party in strict confidence, [and] (b) not disclose such Confidential Information to any Third Parties...."[11]

The Agreement further provides that

[a]ny controversy or claim between the Parties arising out of or relating to this Agreement or a breach thereof which cannot be resolved by negotiation pursuant to Section 6.1 will be resolved by binding arbitration administered by the American Arbitration Association (the "AAA") under this Section 6.2 and the AAA's then-current Commercial Arbitration Rules. If any part of this Section 6.2 is held to be unenforceable, it will be severed and will not effect either the duty to arbitrate or any other part of this Section 6.2.[12]

In the amended complaint, BioD asserts the following claims against Applied Biologics: 1) a copyright infringement claim based on allegations that Applied Biologics copied BioD's website; 2) a Lanham Act claim based on allegations that Applied Biologics made false and misleading statements about plaintiffs' products; 3) a misappropriation of trade secrets claim; 4) an unjust enrichment claim; 5) an aiding and abetting claim based on allegations that Applied Biologics aided and abetted the other defendants' tortious conduct; and 6) a civil conspiracy claim based on allegations that since January 2013, Applied Biologics conspired with the other defendants to misappropriate BioD's copyrights and trade secrets. BioDlogics asserts 1) ...


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