On August 29, 2016 ALJ MaryJoan McNamara issued Order No. 4 in Certain Potassium Chloride Powder Products (Inv. No. 337-TA-1013), denying Respondents’ motion to modify the target date from thirteen to fifteen months.
By way of background, this investigation is based on a complaint filed by Lehigh Valley Technologies, Inc., Endo Global Ventures, Endo Ventures Ltd., and Generics Bidco I, LLC d/b/a Qualitest Pharmaceuticals and Par Pharmaceutical alleging violation of Section 337 by way of unlawful importation into the U.S., selling for importation, and/or selling within the U.S. after importation certain potassium chloride powder products that are allegedly not approved by the U.S. Food and Drug Administration, and unfairly competing with Complainants through the false and misleading packaging, marketing, promotion, distribution, and sale of the Respondents’ unapproved potassium chloride powder products. See our June 15, 2016 and July 22, 2016 posts for more details on the complaint and Notice of Investigation, respectively.
According to the Order, Respondents argued that the compressed procedural schedule would not give them a “fair opportunity to present their defenses,” particularly with regard to the discovery necessary to respond to issues of consumer confusion and marketing practices. Complainants and the Commission Investigative Staff (“OUII”) opposed the motion, asserting Respondents have not shown good cause for the extension.
ALJ McNamara determined that Respondents have failed to show good cause for an extension at this time, noting that Respondents’ contentions are “speculative” and “rife with arguments with regard to hypothetical discovery issues that...may never occur.” The ALJ also distinguished the cases that Respondents relied on as proof that target dates are extended for complex issues, noting those cases involved dozens of respondents, very large numbers of patent claims and/or accused products, or extensive foreign discovery, none of which are issues in this investigation. In fact, ALJ McNamara stated the circumstances here “could not be more dissimilar,” because this investigation involves only three respondents and four complainants (each represented by one counsel), one accused product, and one issue related to false advertising. Accordingly, ALJ McNamara denied Respondents’ motion to extend the target date.