Tevra Brands LLC v. Bayer HealthCare LLC

Background

Tevra Brands LLC sued Bayer HealthCare LLC, Bayer Animal Health GmbH, and Bayer AG under the Clayton Antitrust Act and the Sherman Antitrust Act. The dispute concerns topical flea and tick treatments containing imidacloprid. Tevra alleged that the defendants required retailers and distributors not to carry competing generic topical products and unlawfully tied the purchase of their topical treatments to a patented flea collar.

Bayer HealthCare moved to dismiss the original complaint under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal for failure to state a legally sufficient claim. Bayer HealthCare also asked the court to consider dealer agreements. Tevra later moved for permission to file a first amended complaint, primarily to address those agreements, which Bayer HealthCare had produced after the original complaint was filed.

Court’s analysis

Under Rule 15(a), courts generally should allow an amended complaint when justice requires. The court considered the recognized reasons for denying amendment: undue delay, bad faith or an improper delaying motive, repeated failure to fix deficiencies, undue prejudice to the opposing party, and futility. Futility means that the proposed pleading could not possibly be corrected by alleging additional facts.

The court found that Tevra’s amendment was reasonable because the dealer agreements appeared relevant to the claims. It was not persuaded that Tevra had delayed improperly, particularly because Tevra filed its motion by the deadline in the parties’ agreed case schedule. The court also found no sufficient showing of prejudice to Bayer HealthCare: the case remained at an early stage, fact discovery was still open, and Bayer HealthCare had not identified prejudice to its ability to defend the case. Finally, even if Bayer HealthCare believed the amended complaint remained deficient, the court was not prepared to conclude that amendment would be futile.

Ruling

The court granted Tevra’s motion for leave to file a first amended complaint and ordered Tevra to file it no later than March 20, 2020. Because the first amended complaint became the operative complaint, the court terminated as moot Bayer HealthCare’s motion to dismiss the original complaint. The order did not decide whether the antitrust claims were legally sufficient or whether Bayer HealthCare’s dismissal arguments would ultimately prevail.