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Ixchel Pharma, LLC v. Biogen, Inc.

United States Court of Appeals, Ninth Circuit

July 16, 2019

Ixchel Pharma, LLC, Plaintiff-Appellant,
v.
Biogen, Inc., Defendant-Appellee.

          Argued and Submitted May 15, 2019 San Francisco, California

          Appeal from the United States District Court for the Eastern District of California, No. 2:17-cv-00715-WBS-EFB William B. Shubb, District Judge, Presiding

          For Plaintiff-Appellant: Christopher Banys Richard C. Lin Banys, P.C.

          For Defendant-Appellee: Mark S. Popofsky Ropes & Gray LLP, Rocky Tsai Ropes & Gray LLP

          Before: J. Clifford Wallace, Sandra S. Ikuta, and Morgan Christen, Circuit Judges.

         ORDER CERTIFYING QUESTIONS TO THE CALIFORNIA SUPREME COURT

         SUMMARY[*]

         California Law/Business Torts

         The panel certified to the California Supreme Court the following questions:

Does section 16600 of the California Business and Professions Code void a contract by which a business is restrained from engaging in a lawful trade or business with another business?
Is a plaintiff required to plead an independently wrongful act in order to state a claim for intentional interference with a contract that can be terminated by a party at any time, or does that requirement apply only to at-will employment contracts?

          ORDER

         We ask the California Supreme Court to resolve two open questions of state law. First, we need guidance in determining whether section 16600 of the California Business and Professions Code applies only to contracts between employers and employees, or also applies to contracts between two businesses. Second, the California Supreme Court has held that a plaintiff must plead an independently wrongful act in order to state a claim for intentional interference with an at-will employment contract. We need guidance, however, in determining whether this requirement applies to contracts outside of the employment context, as two California Courts of Appeal districts have suggested that it does not. Accordingly, we certify the following questions:

Does section 16600 of the California Business and Professions Code void a contract by which a business is restrained from engaging in a lawful trade or business with another business?
Is a plaintiff required to plead an independently wrongful act in order to state a claim for intentional interference with a contract that can be terminated by a party at any time, or does that requirement apply only to at-will employment contracts?

         Our phrasing of the questions should not restrict the Court's consideration of the issues involved. The Court may rephrase the questions as it sees fit in order to address the contentions of the parties. If the Court agrees to decide these questions, we agree to accept its decision. We recognize that the Court has a substantial caseload, but we submit these questions in the interests of comity and because of their significance for business torts in California.

         I

         Ixchel Pharma is a biotechnology company that develops small-molecule drugs for the treatment of mitochondrial disease. Ixchel has been working on the development of an experimental therapeutic drug to treat Friedreich's ataxia, a rare neurological disease. The ...


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