In a unanimous decision signed by Chief Justice Leo E. Strine, Jr., the Delaware Supreme Court has upheld a $73.2 million award granted last fall to Wellstat Therapeutics.
In its opinion, the Delaware Supreme Court affirmed the vast majority of the lower court’s judgment against BTG in favor of Wellstat, making only a minor adjustment in the dates used to calculate prejudgment interest. Wellstat will recover at least the full amount of the original judgment, if not more, given that eight months of post-judgment interest have now accrued since the original award. In its lawsuit, Wellstat sued BTG over the marketing of Vistogard®, a life-saving drug designed to serve as an antidote for over-exposure to certain types of chemotherapy, for which Wellstat developed and obtained FDA approval. Wellstat signed a distribution agreement with BTG that obligated BTG to commercialize and market the drug over a 10-year period. Under the agreement, BTG was supposed to use “diligent efforts.”
The FDA approved Vistogard® in December 2015. In the months preceding approval, the parties began to dispute the level of effort BTG planned to devote to the product. Seven months later, in July 2016, BTG sued Wellstat claiming that BTG had complied with the contract. Wellstat filed a counterclaim seeking to terminate the distribution rights and to recover damages.
Last fall, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery ruled in favor of Wellstat, finding that BTG had breached the agreement in various ways. Further, he found no validity to BTG’s claims. Vice Chancellor Laster awarded Wellstat actual damages of $55.8 million plus prejudgment interest accruing at 1 percent per month, compounded. In addition, Vice Chancellor Laster awarded Wellstat an unspecified amount of attorneys’ fees due to BTG’s conduct during the litigation.
More information about the Supreme Court’s ruling can be found here: