Bioveris Corp. v. Meso Scale Diagnostics, LLC

• Decision Date: 05 June 2018
• Docket Number: C.A. No. 8692-VCMR
• Parties: BIOVERIS CORPORATION, Plaintiff, v. MESO SCALE DIAGNOSTICS, LLC, and MESO SCALE TECHNOLOGIES, LLC Defendants.
• Court: Court of Chancery of Delaware

BIOVERIS CORPORATION, Plaintiff, v. MESO SCALE DIAGNOSTICS, LLC,andMESO SCALE TECHNOLOGIES, LLC Defendants.

C.A. No. 8692-VCMR

COURT OF CHANCERY OF THE STATE OF DELAWARE

June 5, 2018

ORDER

WHEREAS, Plaintiff filed its Verified Complaint (the "Complaint") on June 28, 2013;

WHEREAS, on April 20, 2017, Defendants filed a Motion for Summary Judgment;

WHEREAS, on November 2, 2017, the Court issued an opinion (the "Memorandum Opinion") in this case granting Summary Judgment in part and requesting supplemental briefing on certain remedies requested by Plaintiff;

WHEREAS, on May 29, 2018, the Court heard oral argument on the supplemental briefing;

NOW, THEREFORE, THE COURT HEREBY FINDS AND ORDERS AS FOLLOWS:

1. The Court has reviewed the parties' briefs, supporting submissions, and the applicable law.

2. The Complaint states that the dispute between Plaintiff and Defendants "arises out of Meso's breach of an Agreement, effective as of August 12, 2004 . . . (the 'Settlement Agreement')." Compl. ¶ 1. The Complaint also states that the Purchase Price "was determined by the terms of the Settlement Agreement and certain provisions incorporated by reference therein from a 1995 Joint Venture Agreement." Id. ¶ 2. Count I of the Complaint seeks several remedies for breach of contract because "Meso agreed to pay BioVeris the Purchase Price in accordance with the terms of the Settlement Agreement and the provisions of the [Joint Venture Agreement] incorporated by reference therein," and "Meso breached this obligation when it failed to pay the Purchase Price in full." Id. ¶¶ 23-24. Count II of the Complaint seeks foreclosure of BioVeris's security interest, which was granted "[p]ursuant to the Settlement Agreement and Section 8.5.3(b) of the [Joint Venture Agreement] incorporated by reference therein" because "Meso has defaulted on its obligations by failing to remit quarterly payments on the outstanding amount." Id. ¶¶ 31, 33. The Complaint does not allege that the Joint Venture Agreement (the "JVA") has been breached. In fact, Plaintiff filed a simultaneous request forarbitration that states "[Plaintiff] has also filed a Complaint in the Court of Chancery of the State of Delaware seeking relief for breach of the Settlement Agreement." Pl.'s Opp'n to Defs.' Mot. for Summ. J. Ex. 107, at 2.

3. The Complaint does seek remedies under Section 8.5.6(a) and 8.5.6(b) of the JVA. Compl. ¶¶ 26, 27. The Complaint, however, does not allege that those sections were incorporated by reference into the Settlement Agreement. Regardless, any remedies from the JVA incorporated by reference into the Settlement Agreement, and available by virtue of a breach of the Settlement Agreement, must be pursued under paragraph 34 of the Settlement Agreement. This pursuit is time barred for the reasons discussed in the Memorandum Opinion.

4. If the remedies sought under the JVA were not incorporated by reference into the Settlement Agreement, then they would only be available by virtue of a breach of the JVA. Plaintiff has not alleged any breach of the JVA. Thus, the Court cannot consider whether Plaintiff is entitled to any remedies available upon breach of the JVA.

5. Finally, Plaintiff argues that regardless of any statute of...