United States, et al v. Cytogel Pharma, LLC

Filing 395

ORDER AND REASONS re #271 MOTION for Partial Summary Judgment of Cytogel's Second Amended and Restated Counterclaims (Doc. 220) Counts 8, 10, 11, 12, and 13 for Failing to Bring Them within the Prescription or Peremption Periods and #279 MOTION for Summary Judgment as to Cytogel's Second Amended and Restated Counterclaims (Doc. 220) Counts 5-13 for Failure to Establish an Essential Element of Each Claim - For the reasons herein, IT IS ORDERED that Plaintiff the Administrators of the Tulane Educational Fund is entitled to judgment in its favor and against Defendant Cytogel Pharma, LLC, on Counts 9 and 11-13 of Defendant's Second Amended and Restated Counterclaims. Counterclaim-Defendant Dr. James E. Zadina is entitled to judgment in his favor and against Cytogel Pharma, LLC, on Count 12 of Defendant's Second Amended and Restated Counterclaims. IT IS FURTHER ORDERED that the #74 Motion to Dismiss Counts 8 and 10-13 of Defendant Cytogel Pharma, LLC's First Amended Counterclaims on Prescription Grounds, filed by the Administrators of the Tulane Educational Fund and Dr. Zadina, be and hereby is DENIED as to Counts 8 and 10 of Defendant's Second Amended and Restated Counterclaims and DENIED AS MOOT as to Counts 11-13 of Defendant's Second Amended and Restated Counterclaims. IT IS FURTHER ORDERED that the #75 Motion to Dismiss Cytogel's First Amended Counterclaims, filed by Tulane and Dr. Zadina pursuant to Rule 12(b)(6)223 of the Federal Rules of Civil Procedure, in which the United States joins, be and hereby is DENIED IN PART AS MOOT as to Counts 5-8, Count 9 as against the Administrators of the Tulane Educational Fund, and Counts 10-13. IT IS FURTHER ORDERED that the #301 Motion to Dismiss Counts 1, 8, 9, and 14 of Cytogel's First Amended Counterclaims, filed by the United States, be and hereby is DENIED IN PART AS MOOT as to Count 8. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
THE UNITED STATES and
THE ADMINISTRATORS OF THE
TULANE EDUCATIONAL FUND,
Plaintiffs

CIVIL DOCKET

VERSUS

NO. 16-13987

CYTOGEL PHARMA, LLC,
Defendant

SECTION: “E”

ORDER AND REASONS
Before the Court are a Motion for Partial Summary Judgment as to Counts 5–13 of
Cytogel Pharma LLC’s (“Cytogel”) Second Amended and Restated Counterclaims for
Failure to Establish an Essential Element of Each Claim 1 and a Motion for Partial
Summary Judgment on Counts 8 and 10–13 of Cytogel’s Second Amended and Restated
Counterclaims on peremption and prescription grounds, 2 filed by Plaintiff the
Administrators of the Tulane Educational Fund (“Tulane”) and Counterclaim-Defendant
Dr. James E. Zadina. The United States joins the motions in part. 3 Cytogel opposes the
motions. 4 For the reasons that follow, Tulane and Dr. Zadina’s Motions for Summary
Judgment are GRANTED IN PART and DENIED IN PART. The Court also addresses

R. Doc. 279.
R. Doc. 271.
3 The United States joins the Motion for Summary Judgment on peremption and prescription grounds as
to Count 10 of Cytogel’s counterclaims, R. Doc. 271 at 1, and the Motion for Summary Judgment for failure
to establish an essential element of each claim as to “counterclaims presently asserted against it: Counts 8,
10, 11, and 13,” R. Doc. 279 at 1. This list does not include Count 9, which Cytogel brings against the Tulane
and the United States, R. Doc. 220 at 39. As a result, in this Order, the Court does not address Count 9 as
against the United States. The list includes Count 11 of Cytogel’s counterclaims, which the Court dismissed
as to the United States on March 28, 2017. R. Doc. 67.
The Court dismissed Counts 10 and 13 of Cytogel’s counterclaims as to the United States on September 17,
2018. R. Doc. 297. The only claim against the United States the Court addresses in this order is Count 8.
4 R. Docs. 305, 321.
1

2

1

portions of pending motions to dismiss raising the same arguments as the instant motions
for summary judgment. 5
BACKGROUND 6
In the 1990s, Dr. Zadina and his colleagues at Tulane University researched and
developed opioid compounds related to endomorphins, which are opioid peptides found
naturally in the human body. 7 Based on their research, Tulane obtained two patents, U.S.
Patent Nos. 5,885,958 (“the ’958 Patent”) and 6,303,578 (“the ’578 Patent”), claiming
these compounds. 8 On December 1, 2003, Tulane licensed the patents to Cytogel. 9
After Tulane and Cytogel signed a Licensing Agreement, Dr. Zadina began
performing consulting work for Cytogel pursuant to a Consulting Agreement. 10 He
advised Cytogel on the development of Cyt-1010, a synthetic opioid peptide covered by
the ’958 and ’587 Patents, 11 for commercial use as an analgesic. 12
Dr. Zadina was a joint employee of Tulane and the Department of Veterans Affairs
(“VA”).13 He and his colleague Dr. Laszlo Hackler developed new synthetic opioid
compounds for Tulane and the VA. 14 Drs. Zadina and Hackler filed United States

R. Docs. 74, 75, 301.
The facts in this section are undisputed unless noted otherwise. For purposes of their Motion for Partial
Summary Judgment as to Counts 5–13 of Cytogel’s Second Amended and Restated Counterclaims, Tulane
and Dr. Zadina do not dispute the facts set forth in portions of Cytogel’s pleadings that they cite, R. Doc.
279-3 at 7 n.2. For purposes of their motion, they also do not dispute the facts set forth in their own
statement of undisputed facts. Id.
7 R. Doc. 1 at 4–5, ¶ 14–16; R. Doc. 220 at 9, ¶ 16.
8 R. Doc. 1 at 5–6, ¶ 17–19; R. Doc. 220 at 9, ¶ 16.
9 R. Doc. 1 at 6, ¶ 20; R. Doc. 220 at 9, ¶ 17.
10 R. Doc. 1 at 6–9, ¶ 24–36; R. Doc. 220 at 10, ¶ 19.
11 The parties’ filings do not clarify whether Cyt-1010 is covered by the ’958 Patent, the ’587 Patent, or both
patents.
12 R. Doc. 1 at 5, 6, ¶ 16, 20–21; R. Doc. 220 at 13, ¶ 32.
13 R. Doc. 1 at 3, ¶ 10–11; R. Doc. 220 at 7, ¶ 10.
14 R. Doc. 1 at 9–10, ¶ 38–41; R. Doc. 220 at 19–21, ¶ 50–55.
5

6

2

Provisional

Application

61/363,039

(“the

Provisional

Application”)

for

these

compounds. 15
On September 8, 2010, Tulane sent Cytogel an email stating Dr. Zadina had
designed a “new family of peptides” and had filed the related Provisional Application. 16
From that date onward, Cytogel “disengaged from Dr. Zadina” and stopped working with
him.” 17 On or around September 10, 2010, Dean Maglaris, Cytogel’s chief executive
officer, told John Christie of Tulane “he believed Cytogel owned the technology of the
Provisional Application.” 18 By November 22, 2011, Cytogel believed there was a “dispute
over the technology of the Provisional Application as between Tulane and Cytogel.” 19 On
that date, Cytogel’s counsel sent Tulane a letter asserting it had evidence Dr. Zadina “took
vital and confidential information from Cytogel, . . . [and] develop[ed] a new molecule
. . . based at least in part on the information that emerged from his consultancy with
Cytogel.” 20
The Provisional Application was incorporated into United States Patent
Application 13/477,423 (“the Patent Application”), 21 which was filed on May 22, 2012. 22
Drs. Zadina and Hackler executed an assignment of the Patent Application to Tulane and
the VA on August 22, 2012, 23 and the assignment was recorded on September 25, 2012. 24

R. Doc. 271-4 at 4, ¶ 8; R. Doc. 321-1 at 4, ¶ 8.
R. Doc. 271-4 at 5, ¶ 14; R. Doc. 321-1 at 5, ¶ 14.
17 R. Doc. 271-4 at 5, ¶ 16; R. Doc. 321-1 at 6, ¶ 16.
18 R. Doc. 271-4 at 6, ¶ 19; R. Doc. 321-1 at 8, ¶ 19.
19 R. Doc. 271-4 at 8, ¶ 22; R. Doc. 321-1 at 10, ¶ 22.
20 R. Doc. 271-4 at 8, ¶ 23; R. Doc. 321-1 at 10, ¶ 23.
21 R. Doc. 271-4 at 4, ¶ 7; R. Doc. 321-1 at 4, ¶ 7.
22 R. Doc. 271-15 at 2.
23 R. Doc. 271-4 at 4, ¶ 10; R. Doc. 321-1 at 4, ¶ 10. Cytogel contests the validity of the assignment. R. Doc.
321-1 at 4, ¶ 10.
24 R. Doc. 271-4 at 4, ¶ 12; R. Doc. 321-1 at 5, ¶ 12.
15

16

3

The Patent Application was published on December 20, 2012. 25 On May 6, 2014, the
Patent Application issued as United States Patent 8,716,436 B2 (“’436 Patent”). 26
On August 19, 2016, the United States and Tulane filed suit against Cytogel for
declaratory judgments of ownership and inventorship of the ’436 Patent and related
applications. 27 On September 7, 2016, Cytogel filed thirteen counterclaims against
Plaintiffs Tulane and the United States, joining Dr. Zadina as Counterclaim-Defendant.28
On July 23, 2018, Cytogel filed its First Amended and Restated Affirmative Defenses and
Second Amended and Restated Counterclaims, which included a fourteenth
counterclaim. 29
The counterclaims at issue in these motions are: (5) Breach of the Duty of Good
Faith and Fair Dealing Owed Under the Consulting Agreement against Dr. Zadina;
(6) Breach of the Licensing Agreement against Tulane; (7) Breach of the Duty of Good
Faith and Fair Dealing Owed Under the Licensing Agreement against Tulane;
(8) Misappropriation of Trade Secrets in violation of the Louisiana Uniform Trade Secrets
Act (“LUTSA”) 30 against the United States, Tulane, and Dr. Zadina; (9) Receipt of a Thing
Not Owed against Tulane and the United States; 31 (10) Violations of the Unfair Trade
Practices and Consumer Protection Law (“LUTPA”) 32 against Dr. Zadina and Tulane; 33
(11) Tortious Interference with Business Relations against Tulane; 34 (12) Tortious

R. Doc. 271-4 at 4, ¶ 9; R. Doc. 321-1 at 4, ¶ 9.
R. Doc. 1 at 11–12, ¶ 43–47; R. Doc. 220 at 21, ¶ 57.
27 R. Doc. 1.
28 R. Doc. 6.
29 R. Doc. 220.
30 LA. REV. STAT. § 51:1431 et seq.
31 The Court does not address Count 9 as against the United States. See supra, n.3.
32 LA. REV. STAT. § 51:1401 et seq.
33 On September 17, 2018, the Court dismissed Count 10 of Cytogel’s Second Amended and Restated
Counterclaims as to the United States. R. Doc. 297.
34 On March 28, 2017, the Court dismissed Count 11 of Cytogel’s counterclaims as to the United States
pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. R. Doc. 67. In its Cytogel’s Second
25

26

4

Interference with Contractual Relations against Tulane and Dr. Zadina; and (13) Unjust
Enrichment against Tulane. 35
Tulane and Dr. Zadina filed the instant motions on September 10, 2018. 36 In their
Motion for Partial Summary Judgment as to Counts 5–13 of Cytogel’s Second Amended
and Restated Counterclaims for Failure to Establish an Essential Element of Each Claim,
they argue Cytogel has failed to establish essential elements of each claim. 37 In their
Motion for Partial Summary Judgment based on peremption and prescription grounds,
Tulane and Dr. Zadina argue Counts 8, 11, and 12 of Cytogel’s Second Amended and
Restated Counterclaims have prescribed, and Count 10 has perempted. 38 They argue
Count 13, which alleges unjust enrichment, is based on the same facts as its other tort
claims and fails as a result. 39 Cytogel opposes both motions. 40
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”41 “An issue is material if its resolution could affect the outcome of the action.” 42
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or weighing
Amended and Restated Counterclaims, it realleges Count 11 as to the United States. R. Doc. 220. Because
Count 11 has already been dismissed as to the United States, the Court does not address Count 11 in this
order.
35 On September 17, 2018, the Court granted the United States’ unopposed motion to dismiss Count 13 of
Cytogel’s Second Amended and Restated Counterclaims as to the United States. R. Doc. 297.
36 R. Docs. 271, 279.
37 R. Doc. 279.
38 R. Doc. 271-1.
39 R. Doc. 279-1 at 26–27. In their motion for summary judgment on prescription grounds, Tulane and Dr.
Zadina argue, although all Cytogel’s tort claims have prescribed, they are entitled to judgment on Count 13
because an unjust enrichment claim cannot be used to circumvent prescription. R. Doc. 271-1 at 17–18. The
Court does not address this argument because it does not find all of Cytogel’s tort claims have prescribed.
40 R. Docs. 305, 321.
41 FED. R. CIV. P. 56; see also Celotex, 477 U.S. at 322–23.
42 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).

5

the evidence.” 43 All reasonable inferences are drawn in favor of the non-moving party.44
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law. 45
“[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a genuine issue of material fact.”
To satisfy Rule 56’s burden of production, the moving party must do one of two things:
“the moving party may submit affirmative evidence that negates an essential element of
the nonmoving party’s claim” or “the moving party may demonstrate to the Court that the
nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” If the moving party fails to carry this burden, the motion must
be denied. If the moving party successfully carries this burden, the burden of production
then shifts to the non-moving party to direct the Court’s attention to something in the
pleadings or other evidence in the record setting forth specific facts sufficient to establish
that a genuine issue of material fact does indeed exist. 46
If the dispositive issue is one on which the non-moving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the non-movant’s
claim, or (2) affirmatively demonstrating that there is no evidence in the record to

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see
also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
44 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
45 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell
Energy, Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).
46 Celotex, 477 U.S. at 322–24.
43

6

establish an essential element of the non-movant’s claim. 47 If the movant fails to
affirmatively show the absence of evidence in the record, its motion for summary
judgment must be denied. 48 Thus, the non-moving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.” 49 “[U]nsubstantiated
assertions are not competent summary judgment evidence. The party opposing summary
judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’” 50
LAW AND ANALYSIS
I.

Genuine issues of material fact regarding the Consulting Agreement
and Licensing Agreement preclude summary judgment on Counts
5–7 of Cytogel’s Second Amended and Restated Counterclaims.
Tulane and Dr. Zadina are not entitled to judgment as a matter of
law based on the Government License Defense.
Cytogel brings Counts 5–7 under Louisiana contract law against Dr. Zadina and

Tulane. 51 Count 5 alleges Dr. Zadina breached the duty of good faith and fair dealing owed
under

the

Consulting

Agreement

by

misappropriating

Cytogel’s

confidential

information. 52 Count 6 alleges Tulane breached its Licensing Agreement with Cytogel by

Id. at 331–32 (Brennan, J., dissenting).
See id. at 332.
49 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the
evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.
50 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
51 R. Doc. 220 at 32–35.
52 Id. at 32–33, ¶ 97–100.
47

48

7

using the licensed compounds to develop the compounds claimed in the ’436 Patent. 53
Count 7 alleges Tulane breached the duty of good faith and fair dealing owed under the
Licensing Agreement. 54
A.

Count 6 of Cytogel’s Second Amended and Restated Counterclaims
1.

The Government License defense does not shield Tulane and Dr. Zadina
from liability for breach of the Licensing Agreement.

Tulane and Dr. Zadina argue they cannot be held liable for breach of the Licensing
Agreement because the federal government holds a license in the ’958 and ’578 Patents
pursuant to the Bayh-Dole Act. 55 The material facts are not in dispute. Because the ’958
and ’578 Patents were developed in connection with a federal funding agreement, the
patents are subject to a federal government license. 56 The Licensing Agreement specifies
that Tulane’s license to Cytogel is subject to the United States’ retention of “certain rights
in intellectual property funded in whole or part under any contract, grant or similar
agreement with a Federal agency.” 57
Under the Bayh-Dole Act, when a nonprofit organization develops an invention in
connection with a funding agreement and elects to retain title to the invention, “the
Federal agency shall have a nonexclusive, nontransferable, irrevocable, paid-up license to
practice or have practiced for or on behalf of the United States any subject invention
throughout the world.” 58 This “Government License” protects the public’s interest in

Id.
Id. at 34–35, ¶ 106–10.
55 R. Doc. 279-3 at 12–13.
56 R. Doc. 279-4 at 2–3, ¶ 3–5; R. Doc. 305-1 at 2–3, ¶ 3–5.
57 R. Doc. 279-1 at 6, ¶ 2.2.
58 35 U.S.C.A. § 202(c)(4).
53

54

8

“[i]nventions made under a Government contract[, which] are the product of
expenditures from the public treasury in the course of a governmental function.” 59
The Bayh-Dole Act does not specify who may raise a Government License as a
defense. “[C]ourts have recognized that the license may be raised by the Government as
an affirmative defense when the Government is sued for patent infringement in the Court
of Federal Claims.” 60 Tulane and Dr. Zadina cite no cases in support of the proposition
that a nongovernmental entity may raise the Government License in its own defense. In
Madey v. Duke University, 61 the only case squarely addressing this issue, a district court
concluded “the Government License created by the Bayh–Dole Act is designed to regulate
the relationship between the Government and its funding recipients, but it would not be
available to a private third party as the basis for a private right of action or private
defense.” 62 The Madey court cited cases concluding other portions of the Bayh-Dole Act
created a private right of action. 63 The court found “nothing in the terms of the Bayh–
Dole Act or the provisions incorporated into the federal funding agreements that reserves
or retains a license for any private third party.” 64 The court also noted that a separate
statutory provision, 28 U.S.C. § 1498(a), creates an affirmative defense for private parties
using a patent “for the United States,” and, as a result, allowing private parties to invoke

59 Technical Dev. Corp. v. United States, 220 Ct.Cl. 128, 597 F.2d 733, 745 (1979) (quoting Mine Safety
Appliances Co. v. United States, 176 Ct.Cl. 777, 364 F.2d 385, 392 (1966)).
60 Madey v. Duke Univ., 413 F. Supp. 2d 601, 611 (M.D.N.C. 2006) (citing Technical Dev. Corp., 597 F.2d
at 745–46; Technitrol, Inc. v. United States, 194 Ct.Cl. 596, 440 F.2d 1362 (1971)).
61 Id.
62 Id. at 613.
63 Id. at 612–13 (citing Fenn v. Yale Univ., 393 F.Supp.2d 133, 141–42 (D.Conn.2004); Gen–Probe, Inc. v.
Center for Neurologic Study, 853 F.Supp. 1215, 1217–18 (S.D.Cal.1993); Platzer v. Sloan–Kettering Inst.
for Cancer Research, 787 F.Supp. 360, 364–65 (S.D.N.Y.1992), aff'd, 983 F.2d 1086 (Fed.Cir.1992)).
64 Id. at 613.

9

the Government License defense would be duplicative of the defense in § 1498(a). The
Madey court found “no basis to infer a duplicative Government License defense.” 65
This Court agrees with Madey’s interpretation of the Bayh-Dole Act. In this case,
Tulane licensed rights to the ’958 and ’578 Patents to Cytogel subject to a Government
License, but the United States was not a party to the Licensing Agreement. 66 The Court
finds no support in the Bayh-Dole Act or in caselaw for the proposition that the
Government License defense shelters a private party sued for breach of a patent licensing
contract. In Count 6 of its Second Amended and Restated Counterclaims, Cytogel alleges
Tulane breached the contract between Cytogel and Tulane, not that the United States
infringed its rights. 67 The Government License defense does not protect Tulane and Dr.
Zadina from liability under Count 6 of Cytogel’s Second Amended and Restated
Counterclaims. Tulane and Dr. Zadina are not entitled to judgment as a matter of law that
the Government License defense shields them from liability.
2.

The terms of the Licensing Agreement are ambiguous as to the scope of
the license Tulane granted Cytogel, and there are genuine issues of
material fact as to the intent of the parties.

The content of the Licensing Agreement is undisputed. Tulane granted Cytogel “an
exclusive, worldwide license under the Patent Rights . . . to research, use make, have
made, import, sell and offer for sale any Licensed Product(s) within the Field.” 68 The
“Patent Rights” are defined as the rights to the ’958 and ’578 Patents. 69 “Licensed
Product” is defined as “any product incorporating, embodying, otherwise making use of

Id. at 614.
R. Doc. 279-1 at 6, ¶ 2.1–2.2.
67 R. Doc. 220 at 33–34.
68 R. Doc. 279-1 at 6, ¶ 2.1.
69 Id. at 22 (“Appendix A”).
65

66

10

or described in the patents within the Patent Rights.” 70 The “Field” is defined as “the use
of the Licensed Product for medical use in humans and animals.” 71
The parties nevertheless dispute the intent of the parties to the contract.
“Interpretation of a contract is the determination of the common intent of the parties.” 72
“Intent is an issue of fact which is to be inferred from all of the surrounding
circumstances.” 73 “A doubtful provision must be interpreted in light of the nature of the
contract, equity, usages, the conduct of the parties before and after the formation of the
contract, and other contracts of a like nature between the same parties.” 74 “[I]f the
language of a written agreement is on its face ambiguous, the courts can consider parol
evidence and all of the surrounding circumstances in an effort to determine the true intent
of the parties.” 75
In their Motion for Partial Summary Judgment as to Counts 5–13 for Failure to
Establish an Essential Element of Each Claim, Tulane and Dr. Zadina incorporate by
reference the arguments they make in their Motion for Partial Summary Judgment of
Infringement. 76 In that motion, they argue “medical use for humans and animals”
includes only clinical studies at or beyond United States Food and Drug Administration
Phase II because Phase II is the earliest phase involving ill patients, not healthy
volunteers. 77 Because Cytogel alleges Tulane breached the Licensing Agreement in
connection with testing the ’436 Patent compounds, and not during a clinical study in

Id. at 5, ¶ 1.6.
Id. at 5, ¶ 1.5.
72 LA. CIV. CODE art. 2045.
73 Fleniken v. Entergy Corp., 790 So. 2d 64, 73 (La. App. 1 Cir. 2/16/01), writ denied, 793 So. 2d 1250 (La.
6/15/01), and writ denied, 793 So. 2d 1252 (La. 6/15/01).
74 LA. CIV. CODE art. 2053.
75 Starke Taylor & Sons, Inc. v. Riverside Plantation, 301 So. 2d 676, 679 (La. Ct. App. 1974).
76 R. Doc. 279-3 at 13 n.6.
77 R. Doc. 274-3 at 8–10.
70
71

11

Phase II or beyond, Tulane and Dr. Zadina argue Cytogel cannot establish Tulane
breached the agreement. 78
In opposition, Cytogel argues the Licensing Agreement grants it exclusive Patent
Rights for preclinical and Phase I research. 79 The “Field” is defined as “the use of the
Licensed Product for medical use.” 80 Cytogel admits Tulane and Dr. Zadina’s using the
Licensed Product in connection with testing the ’436 Patent compounds did not constitute
medical use per se. 81 Nevertheless, Cytogel argues Tulane and Dr. Zadina violated the
Licensing Agreement because their use of the Licensed Product to test the ’436 Patent
compounds constitutes “use for medical use,” which falls within the scope of the Field. 82
The contract does not define “medical use” or “research.” The Court finds the terms
of the contract are ambiguous regarding whether the license covers preclinical and Phase
I studies. Genuine issues of material fact exist with respect to the meaning of the
contractual provisions defining the scope of the license. 83 “[W]hen a contract is
ambiguous, the trier of fact must resolve the factual issue of intent, and judgment on the
pleadings or summary judgment is improper.” 84 Summary judgment on Count 6 of
Cytogel’s Second Amended and Restated Counterclaims is not appropriate. 85

Id.
R. Doc. 313 at 7.
80 R. Doc. 279-1 at 5, ¶ 1.5.
81 R. Doc. 313 at 7.
82 Id.
83 R. Doc. 313-1 at 4, ¶ 8.
84 Guidry v. Am. Pub. Life Ins. Co., 512 F.3d 177, 181 (5th Cir. 2007) (citing Investors Syndicate of Am., Inc.
v. City of Indian Rocks Beach, 434 F.2d 871, 877–78 (5th Cir.1970); Gertler v. City of New Orleans, 20032131 (La. App. 4 Cir. 9/1/04), 881 So. 2d 792, 796, writ denied, 2004-2649 (La. 1/7/05), 891 So. 2d 687).
85 In the instant motion and opposition, the parties raise arguments regarding whether Tulane breached
the confidentiality provisions of the Licensing Agreement. R. Doc. 279-3 at 13; R. Doc. 305 at 11–14. The
Court notes, in its Second Amended and Restated Counterclaims, Cytogel does not allege Tulane breached
the confidentiality provisions of the Licensing Agreement. R. Doc. 220 at 33–34, ¶ 101–05. As a result, the
Court does not address the parties’ arguments regarding the confidentiality provisions.
78
79

12

B.

Counts 5 and 7 of Cytogel’s Second Amended and Restated Counterclaims

Under Louisiana law, every contract includes an implicit covenant of good faith
and fair dealing. 86 A claim for breach of this duty requires “more than mere bad judgment
or negligence,” but rather a showing of a “design to mislead or deceive another, or a
neglect or refusal to fulfill some duty or some contractual obligation, . . . [prompted] by
some interested or sinister motive.” 87
Cytogel’s Second Amended and Restated Counterclaims are replete with
allegations that Dr. Zadina and Tulane deceived and misled them, in violation of the
Consulting Agreement and Licensing Agreement. 88 These counterclaims are based on
allegations Dr. Zadina secretly used confidential information to compete with Cytogel,
that he and Tulane used products exclusively licensed to Cytogel and continued to hide
this use from Cytogel, and that they deliberately misled Cytogel into believing its
intellectual property rights would be respected. 89 Cytogel states in interrogatory
responses that “malice and ill motive may be inferred” from Tulane and Dr. Zadina’s
actions. 90 Tulane and Dr. Zadina argue this “bald assertion . . . is not sufficient to survive
summary judgment.” 91
Inferring malice and ill motive from parties’ actions falls squarely within the
factfinder’s role, and “[a] motion for summary judgment requiring a judicial

LA. CIV. CODE art. 1983 (“Contracts must be performed in good faith.”); see also LA. CIV. CODE art. 1997
(“An obligor in bad faith is liable for all the damages, foreseeable or not, that are a direct consequence of
his failure to perform.”).
87 Industrias Magromer Cueros y Pieles S.A. v. Louisiana Bayou Furs Inc., 293 F.3d 912, 922 (5th Cir.
2002) (quoting Bond v. Broadway, 607 So.2d 865, 867 (La.Ct.App.1992)).
88 See generally R. Doc. 220.
89 Id. at 19–28.
90 R. Doc. 279-4 at 9, ¶ 33–36; R. Doc. 305-1 at 11, ¶ 33–36.
91 R. Doc. 279-3 at 15.
86

13

determination of subject facts, such as motive, intent or knowledge, is rarely
appropriate.” 92
The Court notes Tulane and Dr. Zadina do not move for summary judgment on
Count 4, which is the underlying breach of contract claim for the breach of the duty of
good faith and fair dealing alleged in Count 5. The Court has found genuine issues of
material fact that preclude summary judgment on Count 6, which is the underlying breach
of contract claim for Count 7. “[J]udicial determination of good-faith (or bad-faith) failure
to perform a conventional obligation is always preceded by a finding that there was a
failure to perform, or a breach of the contract.” 93 The genuine issues of material fact as to
the underlying breach of contract claims and disputes about the parties’ motives preclude
summary judgment on the claims for breach of the duty of good faith and fair dealing.
As a result, the Court denies Tulane and Dr. Zadina’s Motion for Partial Summary
Judgment for Failure to State the Essential Elements of a Claim as to Counts 5–7. 94
II.

With respect to Count 8 of Cytogel’s Second Amended and Restated
Counterclaims, there are genuine issues of material fact about
whether Tulane, Dr. Zadina, and the VA misappropriated Cytogel’s
trade secrets, and movants have not established that the claim has
prescribed.
Cytogel brings Count 8 of its Second Amended and Restated Counterclaims,

alleging misappropriation of trade secrets, against Tulane, Dr. Zadina, and the United
States pursuant to LUTSA. 95 Cytogel alleges five trade secrets were misappropriated:
Cytogel’s research and development regarding Cyt-1010’s commercial viability and fitness
for human use, Cytogel’s research on Cyt-1010’s safety, data and information on solubility

Neuman v. Mauffray, 1999-2297 (La. App. 1 Cir. 11/8/00), 771 So. 2d 283, 286.
Favrot v. Favrot, 2010-0986 (La. App. 4 Cir. 2/9/11), 68 So. 3d 1099, 1110, writ denied, 2011-0636 (La.
5/6/11), 62 So. 3d 127.
94 R. Doc. 279.
95 R. Doc. 220 at 35.
92
93

14

issues with Cyt-1010, information on potential modifications to Cyt-1010’s structure, and
information about marketing and communicating with licensing partners. 96 Tulane and
Dr. Zadina argue Cytogel has no evidence to support the existence of a trade secret, 97 and
Cytogel’s claim has prescribed. 98 The United States joins as to the Motion for Partial
Summary Judgment for Failure to Establish an Essential Element of Each Claim, 99 but
not as to the Motion for Partial Summary Judgment on peremption and prescription
grounds. 100
A.

Tulane, Dr. Zadina, and the United States have not shown they are entitled
to judgment as a matter of law that Cytogel did not own trade secrets.

The parties dispute the facts material to Cytogel’s claim for misappropriation of
trade secrets. Tulane, Dr. Zadina, and the United States assert Cytogel does not and
cannot distinguish between information it keeps confidential and trade secrets it owns.101
Cytogel disputes this fact. 102 In its Second Amended and Restated Counterclaims, Cytogel
specifies five different trade secrets that it alleges Dr. Zadina, Tulane, and the VA
misappropriated. 103 Tulane, Dr. Zadina, and the United States dispute whether any of
these are actually trade secrets. 104
LUTSA defines a trade secret as “information, including a formula, pattern,
compilation, program, device, method, technique, or process, that (a) derives
independent economic value, actual or potential, from not begin generally known to and
not being readily ascertainable by proper means by other persons who can obtain
Id. at 35–36, ¶ 112.
R. Doc. 279-3 at 16–20.
98 R. Doc. 271 at 9–14.
99 R. Doc. 279 at 1.
100 R. Doc. 271 at 1.
101 R. Doc. 279-4 at 6, ¶ 22, 23.
102 R. Doc. 305-1 at 7–8, ¶ 22, 23.
103 Id. at 35–36, ¶ 112.
104 R. Doc. 279-4 at 6, ¶ 22, 23.
96
97

15

economic value from its disclosure or use, and (b) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.” 105 “Whether something is a
trade secret is a question of fact.” 106
Tulane and Dr. Zadina argue Cytogel has not identified the trade secrets at
issue. 107 They cite excerpts from the deposition transcripts of Dean Maglaris, Cytogel’s
CEO, in which he defined trade secrets as anything Cytogel does “that creates new
information about [its] technology and products” and stated trade secrets were in the
“same category” as confidential information, and the two were “treated the same way.” 108
Tulane and Dr. Zadina cite these deposition excerpts for the propositions that (1)
“[a]ccording to Cytogel, anything Cytogel does that creates new information about the
technology and the products Cytogel is working on is Cytogel’s trade secret” and (2)
“Cytogel does not separate and treat any particular information in its company as a trade
secret.” 109 Cytogel disputes these characterizations. 110
The fact that Cytogel’s CEO could not identify the legal difference between a trade
secret and confidential information during a deposition does not undermine Cytogel’s
allegation that it owned trade secrets. Cytogel specifies five trade secrets it alleges Tulane
and Dr. Zadina misappropriated. Disputed issues of fact remain with respect to whether
Cytogel owns any trade secrets.

LA. REV. STAT. § 51:1431(4).
CheckPoint Fluidic Sys. Int'l, Ltd. v. Guccione, 888 F. Supp. 2d 780, 796 (E.D. La. 2012) (citing
Pontchartrain Med. Labs., Inc. v. Roche Biomedical Labs., Inc., 95-2260 (La. App. 1 Cir. 6/28/96), 677 So.
2d 1086, 1091; United Group of Nat'l Paper Distribs., Inc. v. Vinson, 27,739 (La. App. 2 Cir. 1/25/96), 666
So. 2d 1338, 1344, writ denied, 96-0714 (La. 9/27/96), 679 So. 2d 1358); see also Lear Siegler, Inc. v. ArkEll Springs, Inc., 569 F.2d 286, 288–89 (5th Cir. 1978) (“The question of whether an item taken from an
employer constitutes a “trade secret,” is of the type normally resolved by a fact finder after full presentation
of evidence from each side.”) (citations omitted).
107 R. Doc. 279-3 at 17.
108 Id. at 17–18.
109 R. Doc. 279-4 at 6, ¶ 22, 23.
110 R. Doc. 305-1 at 7–8, ¶ 22, 23.
105

106

16

LUTSA does not require a corporation to maintain its trade secrets in greater
secrecy than other confidential information. Rather, a trade secret must be “the subject
of efforts that are reasonable under the circumstances to maintain its secrecy.” 111 Even if
Cytogel does not in practice distinguish between trade secrets and other confidential
information, Cytogel may own trade secrets for purposes of LUTSA so long as it makes
reasonable efforts to maintain their secrecy. Disputed issues of fact remain with respect
to whether Cytogel protects its trade secrets.
Tulane and Dr. Zadina also argue Cytogel has not shown its trade secrets had
economic value. 112 Cytogel has produced documentation and expert reports showing the
costs it has incurred in developing Cyt-1010 and estimating the value of the development
opportunities it alleges it lost as a result of Tulane and Dr. Zadina’s alleged
misappropriation. 113 Whether Cytogel’s claimed trade secrets have independent economic
value is a disputed question of fact. Tulane and Dr. Zadina have failed to establish there
are no material facts in dispute with respect to Count 8.
B.

Because genuine issues of material fact exist with respect to when Cytogel
learned or should have learned of Tulane, Dr. Zadina, and the United States’
alleged misappropriation of trade secrets, Tulane, Dr. Zadina, and the
United States are not entitled to summary judgment that Cytogel’s claims
have prescribed.

The undisputed facts show on September 8, 2010, Tulane sent Cytogel an email
stating Dr. Zadina had designed a “new family of peptides” and had filed the related
Provisional Application. 114 As a result, Cytogel stopped working with Dr. Zadina. 115 On or

La. Rev. Stat. § 51:1431(4)(b).
R. Doc. 279-3 at 20.
113 See generally R. Doc. 317. Tulane and Dr. Zadina do not argue that, if there were trade secrets, a
reasonable jury could not find misappropriation.
114 R. Doc. 271-4 at 5, ¶ 14, 16; R. Doc. 321-1 at 5, ¶ 14, 16.
115 R. Doc. 271-4 at 5, ¶ 16; R. Doc. 321-1 at 6, ¶ 16.
111

112

17

around September 10, 2010, Dean Maglaris of Cytogel informed Tulane he believed
Cytogel owned the compound claimed in the Provisional Application.” 116 On November
22, 2011, Cytogel sent Tulane a letter asserting it had evidence Dr. Zadina “took vital and
confidential information from Cytogel, . . . [and] develop[ed] a new molecule . . . based at
least in part on the information that emerged from his consultancy with Cytogel.” 117 The
Provisional Application was incorporated into the related Patent Application, 118 which
was published on December 20, 2012. 119
The parties dispute the date on which the prescriptive period for Cytogel’s LUTSA
claim began. Actions under LUTSA are subject to a three-year prescriptive period that
begins when “the misappropriation was discovered or by the exercise of reasonable
diligence should have been discovered.” 120 “[A] continuing misappropriation constitutes
a single claim.” 121
Cytogel alleges Tulane and Dr. Zadina misappropriated five distinct trade
secrets. 122 The Court first addresses whether the alleged trade secrets are subject to
multiple prescriptive periods. Neither the Fifth Circuit nor Louisiana state courts have
addressed which factual situations require courts to find there are multiple trade secret
claims subject to different prescriptive periods under LUTSA. In Gognat v. Ellsworth 123,
the Colorado Supreme Court addressed this question in the context of the Colorado
Uniform Trade Secrets Act, which is substantially identical to LUTSA. 124 The Gognat

R. Doc. 271-4 at 6, ¶ 19; R. Doc. 321-1 at 8, ¶ 19.
R. Doc. 271-4 at 8, ¶ 23; R. Doc. 321-1 at 10, ¶ 23.
118 R. Doc. 271-4 at 4, ¶ 7; R. Doc. 321-1 at 4, ¶ 7.
119 R. Doc. 271-4 at 4, ¶ 9; R. Doc. 321-1 at 4, ¶ 9.
120 La. Rev. Stat. § 51:1436.
121 Id.
122 Id. at 35–36, ¶ 112.
123 259 P.3d 497 (Co. 2011).
124 Compare COLO. REV. STAT. § 7-74-101 et seq. with LA. REV. STAT. § 51:1436 et seq.
116
117

18

court noted the difficulty of distinguishing between one trade secret subject to one
prescriptive period and multiple related trade secrets subject to separate prescriptive
periods. 125 The court held when multiple trade secrets are sufficiently related, they are
subject to one prescriptive period. 126
In this case, Cytogel alleges Tulane and Dr. Zadina misappropriated five trade
secrets that arise from the Consulting Agreement with Dr. Zadina. 127 Tulane and Dr.
Zadina do not present undisputed evidence that the trade secrets are sufficiently related
to justify subjecting misappropriation claims to one prescriptive period. Some of the
alleged trade secrets include highly technical information relating to testing and viability
of pharmaceuticals. 128 There are material facts in dispute with respect to whether the
alleged trade secrets should be subject to one or to multiple prescriptive periods.
Tulane and Dr. Zadina argue Cytogel was aware of the alleged misappropriation by
the time of Maglaris’ email of September 10, 2010, Cytogel’s letter of November 22, 2011,
or the publication of the Patent Application on December 20, 2012. 129 The Court has
reviewed Cytogel’s letter of November 22, 2011. 130 The letter at best indicates Cytogel was
aware of misappropriation of some, but not all, of the trade secrets Cytogel alleges
Plaintiffs misappropriated. Tulane and Dr. Zadina have not shown that it is undisputed
that all of the prescriptive periods began on November 22, 2011.

Gognat, 259 P.3d at 503 (“While the actual language of the statute may not classify a subsequent
misappropriation of related trade secrets a single claim, the distinction between related trade secrets and
the related pieces of proprietary information forming a single trade secret would appear to be subtle at
best.”).
126 Id. at 504; accord Intermedics, Inc. v. Ventritex, Inc., 822 F. Supp. 634, 657 (N.D. Cal. 1993) (holding
trade secrets under a state statute substantially identical to LUTSA are subject to one prescriptive period
when shared by the plaintiffs “with defendants during the same period and in connection with the same
relationships and when the trade secrets concern related matter.”).
127 R. Doc. 220 at 35–36, ¶ 112.
128 Id.
129 R. Doc. 271-3 at 14.
130 R. Doc. 271-13.
125

19

The Court has also reviewed the Patent Application. 131 It is undisputed patent
applications are publicly available and put parties on notice of their contents. 132 It is
disputed whether the technical contents of the Patent Application did or should have put
Cytogel on notice of misappropriation of its trade secrets. Tulane and Dr. Zadina have
failed to establish they are entitled to judgment as a matter of law that Count 8 of Cytogel’s
Second Amended and Restated Counterclaims has prescribed.
As a result, the Court denies Tulane and Dr. Zadina’s Motion for Partial Summary
Judgment for Failure to State the Essential Elements of a Claim 133 and their Motion for
Partial Summary Judgment on Prescription Grounds 134 as to Count 8 of Cytogel’s Second
Amended and Restated Counterclaims. 135
III.

With respect to Count 9 of Cyotgel’s Second Amended and Restated
Counterclaims, Tulane is entitled to judgment as a matter of law.
The material facts with respect to Count 9 are undisputed. Drs. Zadina and Hackler

executed an assignment of the Patent Application to Tulane and the VA on August 22,
2012. 136 Cytogel did not execute an assignment of the ’436 Patent to Tulane or the VA. 137
Cytogel brings Count 9 of its Second Amended and Restated Counterclaims against
Tulane and the United States under Louisiana Civil Code articles 2299 and 2303.138
Tulane moves for summary judgment on this claim. 139 Article 2299 provides that "[a]

R. Doc. 271-15.
Tewari De-Ox Sys., Inc. v. Mountain States/Rosen, L.L.C., 637 F.3d 604, 612 (5th Cir. 2011) (“There can
be no dispute that a published patent application, like a patent, is readily available – the United States
Patent and Trademark Office and Google both allow free online searching published patent applications.”).
133 R. Doc. 279.
134 R. Doc. 271.
135 The Court denies Tulane and Dr. Zadina’s Motion to Dismiss Cytogel’s First Amended Counterclaims, R.
Doc. 74, as to Count 8.
136 R. Doc. 271-4 at 4, ¶ 10; R. Doc. 321-1 at 4, ¶ 10. Cytogel contests the validity of the assignment. R. Doc.
321-1 at 4, ¶ 10.
137 R. Doc. 274-4 at 8, ¶ 29; R. Doc. 305-1 at 10, ¶ 29.
138 R. Doc. 220 at 39.
139 R. Doc. 279.
131

132

20

person who has received a payment or a thing not owed to him is bound to restore it to
the person from whom he received it." 140 Under Article 2303, “[a] person who in bad faith
received a payment or a thing not owed to him is bound to restore it with its fruits and
products.” 141 Article 2299 requires that the thing not owed must be restored to the person
from whom it was received. Louisiana courts have held Article 2299 “is limited to the
situation in which one person gives something of value to another because of a perceived
obligation to that other, when in fact no obligation exists. It does not apply when a third
party, who is not acting as the agent of either the giver or the receiver is the conduit.” 142
Louisiana Civil Code Article 2303 provides that, if the receipt was in bad faith, the
receiver must restore not only the thing not owed, but also its fruits and products. This
article does not create a cause of action in a third party. In this case, Cytogel alleges Tulane
and the VA wrongfully received ownership rights in the ’436 Patent from Drs. Hackler
and Zadina. 143 Because Cytogel does not allege Tulane and the VA received anything from
Cytogel, Articles 2299 and 2303 do not provide a cause of action to Cytogel. 144
As a result, the Court grants Tulane’s Motion for Partial Summary Judgment for
Failure to State the Essential Elements of a Claim as to Count 9 of Cytogel’s Second
Amended and Restated Counterclaims. 145
LA. CIV. CODE art. 2299.
LA. CIV. CODE art. 2303.
142 Soileau v. ABC Ins. Co., 2002-1301 (La. App. 3 Cir. 3/5/03), 844 So. 2d 108, 110, writ denied, 2003-1558
(La. 10/3/03), 855 So. 2d 313 (internal bracket omitted); see also Stewart v. Ruston Louisiana Hosp. Co.,
LLC, No. CV 3:14-0083, 2016 WL 1715192, at *9 (W.D. La. Apr. 27, 2016) (finding Article 2299
“inapplicable” because the defendants “did not receive any payment whatsoever from Plaintiffs”).
143 R. Doc. 220 at 39.
144 Article 2300 states, “A thing is not owed when it is paid or delivered for the discharge of an obligation
that does not exist.” LA. CIV. CODE art. 2300. Cytogel does not allege that Drs. Hackler and Zadina assigned
their rights in the ’436 Patent in discharge of a non-existent obligation. Cytogel does not, and cannot,
establish that the rights to the '436 patent were a "thing not owed" within the meaning of Article 2300.
Cytogel cites Equilease v. Smith, 588 F.2d 919 (5th Cir. 1979), for the proposition that the precursor to
Article 2299 was “often applied in cases of third party payments.” Id. (citations omitted). Even if this applied
to Article 2299, Cytogel has not shown the rights to the ’436 Patent are a “thing not owed.”
145 R. Doc. 279.
140
141

21

IV.

With respect to Count 10 of Cytogel’s Second Amended and Restated
Counterclaims, there are genuine issues of material fact about
whether Tulane and Dr. Zadina engaged in unfair trade practices,
and movants have not established they are entitled to summary
judgment.
Cytogel brings Count 10 of its Second Amended and Restated Counterclaims

against Tulane and Dr. Zadina pursuant to LUTPA. 146
A.

Tulane and Dr. Zadina have not met their burden of showing there are no
disputed facts with respect to whether they engaged in unfair trade
practices.

The facts material to Count 10 are disputed. Cytogel alleges Tulane, the VA, and
Dr. Zadina misled Cytogel into believing the ’436 Patent compounds would be recognized
as Cytogel’s. 147 Cytogel alleges it shared with Tulane preliminary data from a Cytogel study
that contained “confidential and proprietary” information. 148 It alleges that, shortly
thereafter, Counterclaim-Defendants revised their business plan for the ’436 Patent
compounds to refer to these studies and shared the business plan drafts with a potential
licensing or funding partner. 149 Cytogel also alleges Tulane, the VA, and Dr. Zadina
“consistently indicated” to it that they were “on board” with moving forward the
collaboration between Tulane, the VA, and Cytogel, but instead granted Mirata
Pharmaceuticals, L.L.C. an exclusive license. 150
Tulane and Dr. Zadina dispute each of these facts. They contest Cytogel’s use of the
word “mislead” in describing their interactions with it. 151 They assert the allegedly
proprietary document Cytogel shared did not include confidential information. 152 Tulane

On September 17, 2018, the Court dismissed Count 10 as to the United States. R. Doc. 297.
R. Doc. 305-1 at 33, ¶ 103; R. Doc. 373-1 at 82, ¶ 103.
148 R. Doc. 305-1 at 34, ¶ 109; R. Doc. 373-1 at 85, ¶ 109.
149 R. Doc. 305-1 at 34, ¶ 110–11; R. Doc. 373-1 at 85–87, ¶ 110–11.
150 R. Doc. 305-1 at 35, ¶ 116–17; R. Doc. 373-1 at 90–91, ¶ 116–17.
151 R. Doc. 373-1 at 82, ¶ 103.
152 Id. at 85–87, ¶ 109–11.
146
147

22

and Dr. Zadina also allege they consistently indicated to Cytogel that they planned to
collaborate on the ’436 Patent compounds. 153
Determining what constitutes an unfair trade practice requires a case-by-case
analysis. 154 There must be an element of "fraud, misrepresentation, deception, or other
unethical conduct." 155 In its Second Amended Counterclaims, Cytogel alleges Plaintiffs'
"long-term and concerted attempt to conceal their misconduct and delay its discovery by
Cytogel" is the basis for its unfair trade practices claim. 156 Tulane and Dr. Zadina argue
there is no allegation of a deceptive practice. They base their argument on the fact that
Cytogel’s expert witness Dr. Gregory K. Bell does not specifically refer to LUTPA or unfair
trade practices in his expert report. 157
The parties dispute whether Plaintiffs misled Cytogel and shared its proprietary
information with third parties. 158 The Court finds there are genuine issues of material fact
with respect to whether Tulane and Dr. Zadina engaged in unfair trade practices.
As with Counts 5 and 7 of Cytogel’s Second Amended and Restated Counterclaims,
which involve the duty of good faith and fair dealing, determining whether Tulane and
Dr. Zadina engaged in fraud, misrepresentation, deception, or other unethical conduct is
an issue best left to the factfinder. 159

Id. at 90, ¶ 116.
Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 2009-1633 (La. 4/23/10), 35 So. 3d 1053, 1059.
155 Tubos de Acero de Mexico, S.A. v. Am. Int'l Inv. Corp., 292 F.3d 471, 480 (5th Cir. 2002) (quoting
Omnitech Intern., Inc. v. Clorox Co., 11 F.3d 1316, 1332 (5th Cir.1994)).
156 R. Doc. 220 at 41, ¶ 138.
157 R. Doc. 279-4 at 8, ¶ 30.
158 R. Doc. 305-1 at 33–35, ¶ 103–17; R. Doc. 373-1 at 82–90, ¶ 103–17.
159 See Neuman, 771 So.2d at 286.
153

154

23

B.

Tulane and Dr. Zadina have not established Count 10 of Cytogel’s Second
Amended and Restated Counterclaims has prescribed because LUTPA
claims are subject to the continuing tort doctrine.

Tulane and Dr. Zadina argue Count 10 of Cytogel’s Second Amended and Restated
Counterclaims has prescribed. The material facts are in dispute. In its Second Amended
and Restated Counterclaims, Cytogel argues Dr. Zadina and Tulane’s tort continued into
2016, 160 less than one year before Cytogel first filed its Counterclaims. 161 Tulane and Dr.
Zadina contest the factual basis for this allegation. 162
LUTPA states actions alleging unfair trade practices “shall be prescribed by one
year running from the time of the transaction or act which gave rise to this right of
action.” 163 The statute does not mention continuing violations. In Tubos de Acero, 164 the
Fifth Circuit held, despite the statutory language, that the period was peremptive, but the
peremption period begins at the end of a continuing violation. 165 In 2008, the Louisiana
Supreme Court, in Miller v. Conagra, Inc., explicitly refrained from deciding whether the
period is prescriptive or peremptive. 166 The lower court in Miller had found a continuing
violation; the Louisiana Supreme Court reversed, finding, based on the facts of the case,
that there was no continuing violation. 167

R. Doc. 220 at 41, ¶ 136.
R. Doc. 6.
162 R. Doc. 321-1 at 21, ¶ 28; R. Doc. 367-1 at 42, ¶ 28.
163 LA. REV. STAT. § 51:1409(E) (2006). The statute has since been amended. 2018 La. Acts 143 (Act 337).
164 292 F.3d 471 (5th Cir. 2002).
165 Id. at 481–82 (citing Benton, Benton & Benton v. La. Pub. Facilities Auth., 95-1367 (La. App. 1 Cir.
4/4/96), 672 So. 2d 720, 723, writ denied, 96-1445 (La. 9/13/96), 679 So. 2d 110; Capitol House
Preservation Co. v. Perryman Consultants, Inc., 98-1514 (La. App. 1 Cir. 12/10/98), 725 So. 2d 523; Fox v.
Dupree, 633 So. 2d 612, 614 (La. Ct. App. 1993), writ denied, 635 So. 2d 233 (La. 1994)).
166 Miller v. Conagra, Inc., 2008-0021 (La. 9/8/08), 991 So. 2d 445, 456.
167 Id.
160
161

24

The Fifth Circuit’s decision in Tubos has been criticized by Louisiana appellate
courts. 168 In their reply memorandum, Tulane and Dr. Zadina urge this Court to decline
to follow Tubos. 169 Because the Louisiana Supreme Court has not ruled squarely on the
issue, this Court is bound by the holding in Tubos that LUTPA claims are subject to the
peremptive period, but the continuing violation doctrine does apply. 170
The Court finds the scope, duration, and end date of the alleged continuing unfair
trade practices are disputed questions of fact.
As a result, the Court denies Tulane and Dr. Zadina’s Motion for Partial Summary
Judgment for Failure to State the Essential Elements of a Claim 171 and their Motion for
Partial Summary Judgment on Prescription Grounds 172 as to Count 10. 173
V.

With respect to Count 11 of Cytogel’s Second Amended and Restated
Counterclaims, Cytogel has failed to establish Tulane improperly
influenced others not to deal with Cytogel.
Cytogel brings Count 11 of its Second Amended and Restated Counterclaims

against Tulane for tortious interference with business relations, alleging Tulane has “with

See, e.g., Glod v. Baker, 2004-1483 (La. App. 3 Cir. 3/23/05), 899 So. 2d 642, 649, writ denied, 20051574 (La. 1/13/06), 920 So. 2d 238 (“The cases upon which the Federal Fifth Circuit based Tubos come
entirely from the Louisiana First Circuit Court of Appeal[,] . . . [which] has made a jurisprudential
commitment to a strict definition of peremption embodied in the Civil Code and manifested in its consistent
decisions barring use of the continuing violation doctrine to suspend peremption.”).
169 R. Doc. 367 at 11–12.
170 See CheckPoint Fluidic Sys. Int'l, Ltd. v. Guccione, 888 F. Supp. 2d 780, 792 (E.D. La. 2012) (“This Court
is therefore bound by the Fifth Circuit's holding that La. R.S. 51:1409(E) is a peremptive period, but it does
not begin to run until a continuing violation ceases.”).
In May 2018, the Louisiana legislature changed the language of the statute to clarify violations are subject
to "a liberative prescription" of one year. 2018 La. Sess. Law Serv. Act 337. The accompanying legislative
history sheds no light on the purpose of the amendment. The Court notes the possibility the legislature
meant to resolve the issue and announce LUTPA claims are subject to liberative prescription, not
peremption. The Court finds whether LUTPA claims are subject to a prescriptive period of one year or a
peremptive period of one year that accrues at the end of a continuing tort, there is a genuine issue of material
fact as to when the prescription or peremption period began.
171 R. Doc. 279.
172 R. Doc. 271.
173 The Court denies Tulane and Dr. Zadina’s Motion to Dismiss Cytogel’s First Amended Counterclaims, R.
Doc. 74, as to Count 10.
168

25

malice and ill will propounded false distinctions between the compounds disclosed in the
’436 Patent . . . and Cytogel’s compounds” in order to “prevent others from dealing with
Cytogel.” 174
The material facts are undisputed. In discovery, Cytogel was unable to identify any
third party with which Tulane prevented Cytogel from dealing. 175
Louisiana Civil Code Article 2315 authorizes recovery for damages in delictual
actions. 176 “The Louisiana Supreme Court has recognized a cause of action arising under
article 2315 for tortious interference with business.” 177 In Dussouy v. Gulf Coast
Investment Corp., 178 the Fifth Circuit explained this cause of action:
An individual, regardless of his motive, has an absolute right to refuse to
deal with another. The right to influence others not to deal, however, is not
as broad. In that situation, Louisiana law protects the businessman from
“malicious and wanton interference,” permitting only interferences
designed to protect a legitimate interest of the actor. 179
The Fifth Circuit stated the plaintiff must show the defendant “improperly influenced
others” not to deal with the plaintiff, that “the interference was improper,” and that
“malice is a necessary element of the cause of action.” 180 This is a “very limited form of
recovery” protecting businesspersons from “malicious and wanton interference.” 181 “It is
not enough to allege that a defendant's actions affected plaintiff's business interests; the

R. Doc. 220 at 43, ¶ 144.
R. Doc. 279-4 at 8, ¶ 31–32, R. Doc. 305-1 at 11, ¶ 31–32.
176 LA. CIV. CODE art. 2315(A) (“Every act whatever of man that causes damage to another obliges him by
whose fault it happened to repair it.”).
177 Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 601 (5th Cir. 1981) (citing Graham v. St. Charles St.
Railroad, 47 La.Ann. 1656, 18 So. 707 (1895)).
178 Id.
179 Id. (citations omitted).
180 Id. at 602 (citations omitted).
181 Junior Money Bags, Ltd. v. Segal, 970 F.2d 1, 10 (5th Cir. 1992) (citing id. at 601).
174
175

26

plaintiff must allege that the defendant actually prevented the plaintiff from dealing with
a third party.” 182
Cytogel argues because Tulane granted Mirata Pharmaceuticals, L.L.C. an
exclusive license for the ’436 Patent compounds, Tulane “foreclose[ed] the ability of
Cytogel to deal with third parties regarding the ’436 compounds.” 183 Cytogel presents no
evidence Tulane or Dr. Zadina actually improperly influenced any third party to keep the
third party from dealing with Cytogel.
As a result, the Court GRANTS Tulane and Dr. Zadina’s Motion for Partial
Summary Judgment for Failure to State the Essential Elements of a Claim as to Count
10. 184 The Court DENIES AS MOOT Tulane and Dr. Zadina’s Motion for Partial
Summary Judgment on Prescription Grounds as to Count 10. 185
VI.

With respect to Count 12 of Cytogel’s Second Amended and Restated
Counterclaims, Cytogel has failed to establish either Tulane or Dr.
Zadina engaged in tortious interference with contractual relations,
and the claim has prescribed.
Cytogel brings Count 12 of its Second Amended and Restated Counterclaims

against Tulane and Dr. Zadina for tortious interference with business relations. 186 Cytogel
alleges two instances of tortious interference. 187 Cytogel first alleges Dr. Zadina
intentionally interfered with the contractual relationship between Cytogel and Tulane by
causing Tulane to breach its obligations under the License Agreement. 188 Second, Cytogel

Mountain States Pipe & Supply Co. v. City of New Roads, La., No. CIV.A. 12-2146, 2013 WL 3199724,
at *2 (E.D. La. June 21, 2013) (citing Nowling v. Aero Servs. Int'l Inc., 752 F.Supp. 1302, 1312 n. 7
(E.D.La.1990); Ustica Enters., Inc. v. Costello, 434 So.2d 137, 140 (La.Ct.App.1983)).
183 R. Doc. 305 at 28.
184 R. Doc. 279.
185 R. Doc. 271.
186 R. Doc. 220 at 44–46, ¶ 148–161.
187 Id.
188 Id.
182

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alleges Tulane and the VA intentionally interfered with Dr. Zadina's Consulting
Agreement with Cytogel by causing him to assign his interest in the '436 Patent to them. 189
A.

Dr. Zadina is entitled to judgment on Count 12 as a matter of law because
Cytogel presents no evidence that he was a corporate officer of Tulane or
that he owed Cytogel a duty.

The facts material to Cytogel’s tortious interference with contract claim against Dr.
Zadina are not in dispute. Tulane and Cytogel were parties to the Licensing Agreement. 190
Dr. Zadina did not exceed the scope of his authority as a Tulane employee, and he did not
knowingly commit any act adverse to the interests of Tulane. 191 Cytogel has neither
alleged Dr. Zadina is a corporate officer of Tulane nor specified any duty Dr. Zadina owed
to Cytogel as a result of his employment with Tulane.
Claims for tortious interference with contract are delictual actions under Louisiana
Civil Code Article 2315. 192 In 9 to 5 Fashions, Inc. v. Spurney, 193 the Louisiana Supreme
Court recognized for the first time an action under Article 2315 for tortious interference
with contract, and limited the claim to “a corporate officer's duty to refrain from
intentional and unjustified interference with the contractual relation between his
employer and a third person.” 194 The elements of a tortious interference with contract
claim are:
(1) the existence of a contract or a legally protected interest between the
plaintiff and the corporation; (2) the corporate officer's knowledge of the
contract; (3) the officer's intentional inducement or causation of the
corporation to breach the contract or his intentional rendition of its
performance impossible or more burdensome; (4) absence of justification
on the part of the officer; (5) causation of damages to the plaintiff by the
Id.
R. Doc. 1 at 6, ¶ 20; R. Doc. 220 at 9, ¶ 17.
191 R. Doc. 279-4 at 9, ¶ 37–38, R. Doc. 305-1 at 12, ¶ 37–38.
192 LA. CIV. CODE art. 2315(A) (“Every act whatever of man that causes damage to another obliges him by
whose fault it happened to repair it.”).
193 538 So. 2d 228 (La. 1989).
194 Id. at 234.
189

190

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breach of contract or difficulty of its performance brought about by the
officer. 195
The Fifth Circuit has consistently recognized the limited nature of claims for tortious
interference with contract claim under Louisiana law. 196 The Fifth Circuit has interpreted
9 to 5 and subsequent Louisiana appellate court cases as limiting such actions to
situations when there was a “narrow, individualized duty between the plaintiff and the
alleged tortfeasor.” 197
In this case, Cytogel has failed to establish Dr. Zadina was a corporate officer of
Tulane. Cytogel has also failed to establish that Dr. Zadina owed Cytogel a narrow,
individualized duty to refrain from unjustified interference with Cytogel’s contractual
relations. As a matter of law, Cytogel cannot show that Dr. Zadina tortiously interfered
with the Licensing Agreement between Cytogel and Tulane.
B.

Tulane is entitled to judgment on Count 12 as a matter of law because
Cytogel presents no evidence that Tulane had a duty not to interfere in the
Consulting Agreement.

The facts material to Cytogel’s tortious interference with contract claim against
Tulane are not in dispute. Dr. Zadina and Cytogel were parties to the Consulting
Agreement. 198 Cytogel has not specified any duty Tulane owed to Cytogel as a result of
Dr. Zadina’s Consulting Agreement.

Id.
See, e.g., Petrohawk Properties, L.P. v. Chesapeake Louisiana, L.P., 689 F.3d 380, 395 (5th Cir. 2012);
Egorov, Puchinsky, Afanasiev & Juring v. Terriberry, Carroll & Yancey, 183 F.3d 453 (5th Cir.1999);
American Waste & Pollution Control Co. v. Browning–Ferris, Inc., 949 F.2d 1384 (5th Cir.1991).
197 Petrohawk, 689 F.3d at 395–96 (citing Neel v. Citrus Lands of La., Inc., 629 So.2d 1299, 1301
(La.Ct.App.1993); MD Care, Inc. v. Angelo, 672 So.2d 969, 973 (La.Ct.App.1996)). Cytogel cites Neel for
the proposition that Louisiana law “should recognize something ‘far broader’” than the facts of 9 to 5. R.
Doc. 305 at 28. Absent a contrary ruling by the Louisiana Supreme Court, this Court is bound by the Fifth
Circuit’s interpretation of Louisiana law in Petrohawk.
198 R. Doc. 1 at 6–9, ¶ 24–36; R. Doc. 220 at 10, ¶ 19.
195

196

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Cytogel cannot show Tulane bore Cytogel any duty analogous to “a corporate
officer's duty to refrain from intentional and unjustified interference with the contractual
relation between his employer and a third person.” 199 As a matter of law, Cytogel cannot
show that Tulane tortiously interfered with the Consulting Agreement between Cytogel
and Dr. Zadina.
C.

Cytogel’s claims for tortious interference with contractual relations has
prescribed.

The facts material to prescription of Count 12 are also undisputed. Cytogel alleges
Tulane intentionally interfered with Dr. Zadina's Consulting Agreement with Cytogel by
causing him to assign his interest in the '436 Patent to them. 200 This occurred on August
22, 2012. 201 Cytogel alleges Dr. Zadina intentionally interfered with Tulane’s obligations
under the Licensing Agreement by using compounds licensed to Cytogel to test the '436
Patent. 202 The parties do not specify the date on which the testing occurred, but Cytogel
alleges this occurred prior to the publication of the ’436 Patent. 203 The Patent Application
was published on December 20, 2012, 204 and the ’436 Patent issued on May 6, 2014. 205
“Delictual actions are subject to a liberative prescription of one year . . . run[ning]
from the day injury or damage is sustained.” 206 The prescriptive period for delictual
actions is subject to the continuing tort doctrine, and “in order to allege a continuing tort,

9 to 5, 538 So. 2d at 234.
R. Doc. 220 at 46, ¶ 159.
201 R. Doc. 271-4 at 4, ¶ 10; R. Doc. 321-1 at 4, ¶ 10. Cytogel contests the validity of the assignment. R. Doc.
321-1 at 4, ¶ 10.
202 R. Doc. 220 at 44, ¶ 151.
203 R. Doc. 220 at 23, ¶ 63 (“The ’436 Patent also contains data for experiments directly comparing the
claimed compound to compounds claimed in the licensed ’958 at ’578 Patents.”)
204 R. Doc. 271-4 at 4, ¶ 9; R. Doc. 321-1 at 4, ¶ 9.
205 R. Doc. 1 at 11–12, ¶ 43–47; R. Doc. 220 at 21, ¶ 57.
206 LA. CIV. CODE art. 3492.
199

200

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. . . a plaintiff must allege both continuous action and continuous damage.” 207 Neither Dr.
Zadina’s assignment of the ’436 Patent to Tulane nor his using the ’958 at ’578 Patent
compounds to develop the ’436 Patent constitute continuous action. Both events occurred
well over one year before Cytogel filed its Counterclaims on September 7, 2016. 208
Cytogel’s claims for tortious interference with contractual relations have prescribed.
As a result, the Court grants Tulane and Dr. Zadina’s Motion for Partial Summary
Judgment for Failure to State the Essential Elements of a Claim 209 and, alternatively,
grants their Motion for Partial Summary Judgment on Prescription Grounds 210 as to
Count 12.
VII.

Because Count 13 of Cytogel’s Second Amended and Restated
Counterclaims is based on the same facts as its other counterclaims,
Tulane is entitled to judgment as a matter of law.
Cytogel brings Count 13 of its Second Amended and Restated Counterclaims for

unjust enrichment under Louisiana Civil Code Article 2298. 211 Cytogel bases this claim on
the same facts as its other claims 212 and brings this claim in the alternative. 213
To support a claim for unjust enrichment under Louisiana law, a plaintiff must
show five elements: (1) there must be an enrichment; (2) there must be an
impoverishment; (3) there must be a connection between the enrichment and the
resulting impoverishment; (4) there must be an absence of “justification” or “cause” for
the enrichment and impoverishment; and (5) there must be no other remedy at law

Thomas v. State Employees Group Benefits Program, App. 1 Cir.2006, 934 So.2d 753, 2005-0392
(La.App. 1 Cir. 3/24/06).
208 R. Doc. 6.
209 R. Doc. 279.
210 R. Doc. 271.
211 R. Doc. 220 at 46.
212 Id. at ¶ 162.
213 Id. at ¶ 163.
207

31

available. 214 “The mere fact that a plaintiff does not successfully pursue another available
remedy does not give the plaintiff the right to recover under the theory of unjust
enrichment.’” 215 “This is because [t]he unjust enrichment remedy is only applicable to fill
a gap in the law where no express remedy is provided.” 216 “It is not the success or failure
of the other causes of action, but rather the existence of other cause of action, that
determine whether unjust enrichment can be applied.” 217 Unjust enrichment claims
cannot be maintained in the alternative. 218
Cytogel brings its unjust enrichment claim under the same facts as its thirteen
other counterclaims. Unjust enrichment is inapplicable because the law provides other
express remedies. Cytogel cannot maintain its unjust enrichment claim in the alternative.
As a result, the Court grants Tulane’s Motion for Partial Summary Judgment for
Failure to State the Essential Elements of a Claim as to Count 13. 219 The Court denies as
moot Tulane’s Motion for Partial Summary Judgment on Prescription Grounds as to
Count 13. 220

See JP Mack Indus. LLC, 970 F. Supp. 2d at 520-21 (citing Carriere v. Bank of Louisiana, 95-3058 (La.
12/13/96), 702 So. 2d 648).
215 Walters v. MedSouth Record Mgmt., LLC, 2010-0351 (La. 6/4/10), 38 So. 3d 241, 242 (La. 2010) (per
curiam).
216 Perez v. Utility Constructers, Inc., 2016 WL 5930877, at *1 (E.D. La. Oct. 12, 2016) (internal citations
and quotations omitted).
217 Zaveri v. Condor Petroleum Corp., 27 F. Supp. 3d 695, 702 (W.D. La. 2014) (quoting Garber v. Badon
& Rainer, 2007-1497 (La. App. 3 Cir. 4/2/08), 981 So. 2d 92, 100, writ denied, 2008-1154 (La. 9/19/08),
992 So. 2d 943); see also Carriere v. Bank of Louisiana, 95-3058 (La. 12/13/96), 702 So. 2d 648, 673).
218 Cytogel cites several cases from other sections of this Court to argue it may maintain an unjust
enrichment claim as an alternative claim. R. Doc. 305 at 30 (citing Perez v. Util. Constructors, No. 15-4675,
2016 WL 5930877 (E.D.La. Oct. 12, 2016); McCullum v. McAlister’s Corp. of Mississippi, No. 08-5050,
2010 WL 1489907 (E.D.La. April 13, 2010); Mayer v. Lamarque Ford, Inc., No. 00-1325, 2001 WL 175232
(E.D. La. February 16, 2001)). These cases are contrary to holdings of the Louisiana Supreme Court, see
Walters, 38 So.3d at 242, and the Fifth Circuit, Ferrara Fire Apparatus, Inc. v. JLG Industries, Inc., 581
Fed.Appx. 440, 444 (5th Cir. 2014), and their abrogation was recognized in Andretti Sports Mktg.
Louisiana, LLC v. NOLA Motorsports Host Comm., Inc., No. CV 15-2167, 2015 WL 13540096, at *8 (E.D.
La. Dec. 2, 2015).
219 R. Doc. 279.
220 R. Doc. 271. Tulane and Dr. Zadina do not argue the unjust enrichment claim itself has prescribed.
Rather, they argue Cytogel cannot bring unjust enrichment to circumvent prescription for its other claims.
214

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CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff the Administrators of
the Tulane Educational Fund is entitled to judgment in its favor and against Defendant
Cytogel Pharma, LLC, on Counts 9 and 11–13 of Defendant’s Second Amended and
Restated Counterclaims. Counterclaim-Defendant Dr. James E. Zadina is entitled to
judgment in his favor and against Cytogel Pharma, LLC, on Count 12 of Defendant’s
Second Amended and Restated Counterclaims. 221
IT IS FURTHER ORDERED that the Motion to Dismiss Counts 8 and 10–13 of
Defendant Cytogel Pharma, LLC’s First Amended Counterclaims on Prescription
Grounds, filed by the Administrators of the Tulane Educational Fund and Dr. Zadina, be
and hereby is DENIED as to Counts 8 and 10 of Defendant’s Second Amended and
Restated Counterclaims and DENIED AS MOOT as to Counts 11–13 of Defendant’s
Second Amended and Restated Counterclaims. 222
IT IS FURTHER ORDERED that the Motion to Dismiss Cytogel’s First
Amended Counterclaims, filed by Tulane and Dr. Zadina pursuant to Rule 12(b)(6) 223 of
the Federal Rules of Civil Procedure, in which the United States joins, be and hereby is
DENIED IN PART AS MOOT as to Counts 5–8, Count 9 as against the Administrators
of the Tulane Educational Fund, and Counts 10–13. 224

The Court need not address this argument because the Court does not hold that all of Cytogel’s other tort
claims have prescribed.
221 R. Docs. 271, 279.
222 R. Doc. 74.
223 The Court denied the portion of the motion requesting dismissal of Counts 2 and 3 of Cytogel’s First
Amended and Restated Counterclaims in its Order and Reasons of September 17, 2018. R. Doc. 294.
224 R. Doc. 75. The Court will address in a separate order the remaining portions of the order, in which
Tulane, Dr. Zadina, and the United States move to dismiss Counts 1 and 4, Count 9 as against the United
States, Cytogel’s request for injunctive relief, and Cytogel’s Third and Fourth Affirmative Defenses,
pursuant to Rule 12(b)(6).

33

IT IS FURTHER ORDERED that the Motion to Dismiss Counts 1, 8, 9, and 14
of Cytogel’s First Amended Counterclaims, filed by the United States, be and hereby is
DENIED IN PART AS MOOT as to Count 8. 225
New Orleans, Louisiana, this 25th day of October, 2018.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

R. Doc. 301. The Court will address in a separate order the remaining portions of the order, in which the
United States moves to dismiss Counts 1, 9, and 14 of Cytogel’s Second Amended and Restated
Counterclaims.
225

34