Amgen Inc. v. F. Hoffmann-LaRoche LTD et al

Filing 755

EXHIBIT re #754 Declaration, by Manvin Mayell in Support of Roche's Motion for Leave to File Under Seal Defendants' Trade Secret Contained in Amgen's Reply Memorandum of law in Support of Amgen's Motion for Summary Judgment on Roche's Antitrust and State Law Counterclaims by F. Hoffmann-LaRoche LTD, Roche Diagnostics GmbH, Hoffmann LaRoche Inc.. (Fleming, Thomas)

Amgen Inc. v. F. Hoffmann-LaRoche LTD et al

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EXHIBIT 1 to the Declaration of Manvin S. Mayell in Support of Roche's Motion for Leave to File Under Seal Defendants' Trade Secret Contained in Amgen Inc.'s Reply Memorandum of Law in Support of Amgen's Motion for Summary Judgment on Roche's Antitrust and State Law Counterclaims

Dockets.Justia.com

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

M G E N ZNC.,
Plaintiff and Counterclaim-Defendant,
v.

1
)

1
1
) CIVIL ACTION NO.: 05-CV-12237WGY

F. HOFFMABA-LA KOCHE LTD, ROCHE DLAGNOSTICS G m H , AND HOFFMNN-LA ROCHE LNC.,

1
) )

Defendants and Counterclaim-Plaintiffs.)
'r

DECLARATION OF SONDERS BElMFOHR IN SUPPORT OF MOTION FOR LEAVE TO FILE UNDER SEAL DOCUMENTS CONTAINING DEFENDANTS' TRADE SECRETS SUBMITTED IN CONNECTION WITH AMGEN'S MOTION FOR S Y JUDGMENT ON ROCHIE'S ANTITRUST AND STATX LAW COUNTERCLAIMS AND ROCHE'S OPPOSITION THERETO

I, Sonders Beimfohr, hereby declare under penalty of perjury that:
1.

I am the Director of Strategic Pricing at Roche Laboratories, Inc-, a

wholly-owned subsidiary of Hof8m.m-La Roche Inc. ("Roche").
2.

I make this declaration based upon m own personal knowledge and y

company information.
3.

I have been asked to exambe documents which correspond to Exhibits 5,

13, 15, 16, 1 7,25,27,35,36, 37 of the DecIaration of James M. Fraser in Support of and
Arngen hc.'s Motion for Sumnary Judgment on Roche's Antitrust and State Law
Counterclaims, and which were submitted to the Court for i camera review on June 15, n

2007. I have also been asked t examine documents which correspond to Exhibits 9, 10, o
11, 12,21, 27, 31,32, 34,40,49, 64,84, 85, 126, 214& 215 ~EtheDeclarationofDavid 1

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Cousineau in Opposition to Arngen, hc's Motion for Summary Judgment on Roche's
Antitrust and State Law Counterclaims, which were submifAedto the Court for in camera

review on June 29.2007. I have been asked to review these documents (collectively, h e
"Exhibits") to determine whether they contain information regarded as trade secrets by
Roche.
4.

In general, the Exhibits all include highly sensitive, confidential trade

secret infomtion belonging to Roche, including highly confidential information relating
to Roche's proprietary pricing strategy for MIRCERAB.

Prior to FDA approval,

Roche's anticipated price, and the strategy by which it sets that price, is a closely guarded

secret because price competition is one of Roche's chief competitive weapons for gaining
a foothold in the marketplace. Thus, pursuant to Roche company policy, the documents,

the information contained in the documents, and any communications involving the documents and their information are maintained in confidence and secrecy. 5. One of the significant elements in Roche's pricing strategy is its

proprietary pricing model, which includes a mathematical representation of the market.

The pricing model is, in effkct, a compilation of Roche's entire corporate knowledge regarding the market for its product. Roche expends significant effort and resources
designing and testing this proprietary model, including the substantial time and effort it

spends conducting market and branding research.

6.

Roche's competitive position would severely be harmed if any of the

sensitive trade secret information contained in the Exhibits were available to Roche's

competitors in the highly competitive pharmaceutical industry.

Were Roche's

competitors to know the price of Mircera before Roche received FDA approval, they

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would be able to initiate specific, concrete steps in relation to their own price and
marketing efforts to blunt Roche's entry into the market, which would potentially cost
Roche millions of dollars. Thus, it. is imperative that information regarding Roche's

pricing strategy not be revealed in the public record.
7.

In addition, Roche would be harmed if competitors had access to Roche's

proprietary pricing model, including the assumptions used to design and create that

model and its output. With its pricing model, competitors could derive Roche's highly
sensitive price for Mircera. Moreover, the pricing model contains Roche's internal

analysis and research regarding the marketplace.
8.

Furthermore, the public disclosure of Roche's pricing model would also

destroy the competitive advantage that Roche gains from the proprietary trade secret

methodology it uses to create its pricing model. Roche's approach to pricing which is
used across the company for other products in addition to Mircera provides to Rocbe a
significant advantage in the highly competitive markets in which it competes. The
disclosure of its proprietary pricing models would teach competitors how to construct

similar pricing models, thereby destroying Roche's advantage.
9.
Finally, the public release of the sensitive codidential information

contained in the Exhibits would harm Roche's business relationships with potential
customers. If Roche's customers were armed with detailed knowledge of Roche's profit

margin and the anticipated discounts built into its pricing strategy, they would have

undue leverage when negotiating their purchasing contracts with Roche.
10.
Because of the harm that would result fiom the public disclosure of its

confidential information, including its pricing model, Roche takes great pains to protect

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the secrecy of that information. For example, documents that include confidential
S o m a t i a n a e maked with a "confidential" legend to alert recipients to the document's
sensitive status.

In addition, the circulation of confidential infomation within the

company is restricted.

1

I have conducted a detailed review the Exhibits, and in the paragraphs

below I have set forth a detailed description of the highly sensitive information that
Roche considers a confidential trade secret.
12.

1 understand that Amgen Exhibit 5 and Roche Exhibit 64 contain excerpts

fiom the Expert Report of Professor David 5. Teece, Ph.D., submitted by Amgen in

wmection with the present litigation on May 11, 2007. I fhrher understand that this
document contains both Amgen confidential information (which is not accessible to me

under the protective order) and Roche confidential information. Based on what I
understand is the Roche confrdential information in the report, I have determined that it

contains confidential Roche trade secrets regarding the pricing strategy and marketing
strategy fm Mircera. For example, I can attest that paragraph 76 contains information

regarding Roche's projected profit margin for Mircera, paragraph 111 contains

information regarding expected sales levels, costs and profitability, and paragraph 170
contains information regarding the cost and sales projections for Mircera. In addition,
paragraphs f 74 and 175 contain information regarding the price, profit margin, and

incremental cost of Mircera. This information is protected h m public disclosure, and in
fact has not been disclosed to the public in any form, and its disclosure would severely
harm Roche for the reasons detailed above.

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13.

I understand that Amgen Exhibit 13 and Roche Exhibit 126 contain

excerpts from the expert report of Lauren J. Stiroh, which was produced i the course of n
the present litigation on May 11, 2007. I M e r understand that this document contains

both Amgen confidential information (which is not xcessibIe to me under the protective
order) and Roche mniidentid information. Based on what I understand is the Roche

confidential information i the Report, I have determined that it contains sensitive n
information and figures regatding pricing forecasts and anticipated profit margins for Mircera. For example, page 44-45 of the Report contain discussion of a table showing estimated Mircera prices a d p f i t margins by individual sales channel.

This

information is protected from public disclosure, and in fxt has not been disclosed to the
public i any form, and its disclosure w-odd severely h a m Roche for the reasons detailed n above14.

Amgen Exhibit 15 and Roche Exhibit 1 1 are excerpts fiom the transcript

of my deposition taken in the course of the present litigation, dated March 20, 2007,
which contains a great deal of coddential and highly sensitive information relating to Roche's pricing and marketing strategies. At the deposition, I was asked extensively about Roche's proprietary pricing model and the assumptions we made about the market
during its design

For example, this highly sensitive excerpt contains specific

information relating to Roche's anticipated pricing and profit margins, including the

projected sales price for Mircera, the factors Roche considered in calculating the price of
Mixera, and future events which could impact Roche's pricing strategy fur Mircera. It
also includes sensitive information regarding the strategy for marketing Mircera to

specific customer segments, as well as our analysis and projections regarding Mircera's

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competitive strengths in comparison with Amgen's Aranespm.

This information is

protected from public disclosure, and i fact has not been disclosed to the public in my n

form, and its disclosure would severely ham Roche for the reasons detailed above.
15.

Amgen Exhibit 16 and Roche Exhibit 10 are excerpts of the deposition

transcript o Susan Duncan from the present litigation, dated March 13, 2007, which f contain ~ ~ d e n t iand highly sensitive information relating to Roche's pricing s-trategy al

and proprietary pricing model. These excerpts contain infomation relating to Roche's
competitive pricing analysis for best positioning Mircera against Amgen's AranespB.

For example, pages 160- 161 contain confidential information concerning the ultimate aim of Roche's pricing strategy, while pages 262-63 contain discussion of the specific
anticipated launch price of Mircera. This information is protected from public disclosure,
and in fact has not been disclosed to the public in any form, and its disclosure would

severely harm Roche for the reasons detailed above.
16. Amgen Exhibit 17 and Roche Exhibit 49 contain excerpts from the

deposition transcript of Einer R.Elhauge fiom the present litigation, dated Miy 25,2007,

which I understand contains confidential and trade secret inEormation relating to Roche's
pricing swtegy.
For example pages 110-1 1 and 148-5 1 contain confidential and

sensitive information that has not been made public regarding Roche's proprietary

pricing model and underlying assumptions, as well as Roche internal policies regarding
sales and marketing expenses.

In addition, these pages contain Roche's internal

projections of this litigation's impact on the market and pricing of Mircera. This
information is protected h m public disclosure, and in fact has not been disclosed to the

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public in any form, and its disclosure would severely harm Roche for the reasons detailed
above.
17.

Amgen Exhibit 25 is an excerpt fi-om the deposition transcript of Barbara

Senich h r n the present litigation dated March 30, 2007, which contains coddentid

information relating to Roche's pricing and discount strategy, including the hihighly
confidential projected price of Mircera. This idormation is protected from public

disclosure, and in fact has not been disclosed to the public in any form, and its disclosure
would severely harm Roche for the reasons detailed above.

18.

Arngen Exhibit 27 and Roche Exhibit 40 are excerpts of a draft of a n

internal presentation entitled MTRCEM: Pricing ar~dConmcring Recomrnenda~ion,

dated November 6,2006. This document was prepared in connection with a presentation
I gave to the US Pricing Committee, which is an executive level internal Roche

committee. Contained in this document is an overview of Roche's entire pricing and
marketing strategy, which includes highly sensitive information regarding Roche's
preliminary pricing recommendations and Roche's specific strategy for countering

competitor responses to Roche's pricing strategy. In addition, this document contains
I

extensive information regarding the assumptions underlying the proprietary pricing

model for Mircera, including Roche's sales projections, profit projections, marking costs,
and costs of goods sold. This document also contains the results of marketing research
concerning the price sensitivity of individual customer segments. This it&ormation is

protected from public disclosure, and i fact has not been disclosed to the public in any n
form, and its disclosure would severely harm Roche for the reasons detaiIed above.

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19.

h g e n Exhibit 35 is a draft of an internal presentation entitled MRCERA

Pricing U p a e . This document was prepared by Chris Schneider and me for the US
Pricing Committee. This confidentialdocument contains detailed information regarding

the development and design of Roche's proprietary pricing model for Mircera It also
contains Roche's confidential analysis o f the market for Mircera, and Roche's strategies

for entering into purchasing contracts with its customers. This infixmation is protected
from public disclosure, and in fact has not been disclosed to the public i any form, and n

its disclosure would severely harm Roche for the reasons detailed above.
20.

Amgen Exhibit 36 is a confidential document entitled MIRCERA Price

Optirnizution Model, dated October 6,2006. This document was prepared in connection

with a presentation t a was given by my colleague Chris Schneider to the US Pricing ht Committee. It contains detailed information regarding the design and assumptions
underlying Roche's proprietary pricing model. This document also contains Roche's

detailed analysis regarding the market segmentation and market strategy for Mircera.
This i d m a t i o n is protected h m public &sclosure, and in fact has not been disclosed to

the public in any form, and its disclosure would severely harm Roche for the reasons

detailed above.
21.

h g e n Exhibit 37 and Roche Exhibit 9 both contain excerpts fiom a

draft document entitled MIRCERAB WAC Pricing and Confracting Strategies Review
Meeting, which contains confidential Roche information regarding the projected price of
Mircera and Roche's pricing strategy for Mircera.

For example, page 249 of the

document contains confidential Roche information regarding the anticipated frnal price

for Mircera, and a comparison of Miera's price to Amgen's Aranesp and Epogen, and

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Ortho's Procrit. In addition, page 191 of the document contains information related to

Urnhe's pricing strategy for Mircera, including the information considered in calcdating
the anticipated launch price of Mircera, while pages 283 and 284 contain information

regarding potential provider contract discounts by market segment. As stated above,

Roche's anticipated price for Mircera is a highly sensitive trade secret that would cause severe harm to Roche if released. This information is protected fiom public disclosure,
and in f z t has not been disclosed to the public in any form, and its disclosure would severely harm Roche for the reasons detailed above. Indeed, this document specifically

bears the notation that it is "[fjorlimited internal distribution" only.
22.

Roche Exhibit 12 is my decIaration from the present Litigation, dated June

25, 2007, which contains a great deal of confidential tlorrnation related to Roche's pricing strategy for Mircera. In particular, paragraphs 3-6 of my declaration contain
confidential information concerning the factors whch Roche considers when setting
prices for its products.

In addition, paragraph 7 contains confidential information
This Xormation is

concerning Roche's contracting practices with its customers.

protected from public disclosure, and in fact has not been disclosed to the public in any

form, and its disclosure would severely h a m Roche for the reasons detailed above.
23.

I understand that Roche Exhibit 2 1 is an excerpt £torn the Rebuttal Expert

Report of Dr. Douglass Bemheim, submitted by Amgen i the current litigation on May n

11, 2007. I further understand that this document contains both Amgen confidential information (which is not accessible to me under the protective order) and Roche

confidential information.

Based on what I understand is the Roche confidential

information in the report, I have determine that this document contains confidential

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information regarding Roche's pricing stsategy. In particular, paragraph 120 conkins a
discussion of Roche's pricing strategy, as well as Roche's projections of compe~tors'

responses to Mircera pricing strategies, This inf'ormation is protected from public

disclosure, and i fact has not been disclosed to the public in any form, and its disclosure n
would severely harm Roche for the xeasons detailed above.
24.

I understand that Roche Exhibit 27 is an excerpt from the Expert Report

of Dr. Douglass Bernheim, submitted by Amgen in the current litigation on April 6,2007.

I further understand that this document contains both Amgen confidential information
(which is not accessible to me under the protective order) and Roche confidential

information. Based on what I understand is the Roche confidential information i the n
report, I have determined that this Report includes discussion of Roche's internal
projections of Mircera's sales price and market share,

In particular, Paragraph 295

contains a discussion of Roche internal Mircera sales forecasts, including Ruche forecasts
of Mircera's market share i individual sales chatmels. n

This information is protected

fiom public disclosure, and in fact has not been disclosed to the public i any form, and n

its disclosure would severely harm Roche for the reasons detailed above.
25.

Roche Exhibit 31 and Roche Exhibit 32 are excerpts from Roche's

Mircera pricing model which contain confidential information concerning Roche's
pricing shtegy for Mircera.

These documents contain idonnation about Roche's

projected prices and discounting strategies to customers. This inlformation is protected

fiom public disclosure, and in fact has not been disclosed to the public in any form, and

its disclosure would severely harm Roche for the reasons detailed above.

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26.

Roche Exhibit 34 is an excerpt fiom a draft document entitled

MTRCER4@ Pricing and Contracfing IZecommendution, November Pricing Deck dated
November 6, 2006, which contains a chart listing Roche projections of the change in

price of Mircera, Epogen and Aranesp over time, and also contains information
concerning Roche's assumptions concerning Amgen's competitive response to Mircera's
entry. As stated above, Roche's anticipated price for Mircera is a highly sensitive trade
secret that would cause severe harm to Roche if released. This information is protected

h r n public disclosure, and in fact has not been disclosed to the public i any fom, and n

its disclosure would severely harm Roche for the reasons detailed above.
27.

Roche Exhibit 84 is an excerpt from the deposition of Chrystopher

Kokino in this matter, dated March 15, 2007, which contains confidential i&ormation
concerning Roche projections of Mircera's prices. I particular, pages 249 and 250 n

contain confidential information concerning Roche projections of Mircera price and
market share and the effect of Amgen's conduct on Mircera price and market share. This

information is protected from public disclosure, and in fact has not been disclosed to the

public irr any form,and its disclosure would severely harm Roche for the reasons detailed
above.
28.

I understand that Roche Exhibit 85 is an excerpt fiom the expert report of

Einer Elhauge, Esq. from the current litigation, dated April 6, 2007. I Eurther understand
that this document contains both Amgen confidential information (which is not accessible
to me under the protective order) and Roche confidential information. Based upon what I
understand is the Roche confidential information in the report, I have determined that this

document contains wnfidential information concerning Roche's pricing strategy for

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Mircera. In pa.rticular, paragraphs 43 and 44 contain confidential information concerning
Roche projections of Mircera's Launch price for specific customer segments. This

information is protected f?om public disclosure, and in fact has not been disclosed to the

public in m y form, and its disclosure would severely harm Roche for the reasons detailed
above.
29.

I understand that Roche Exhibit 30 is an excerpt h m the rebuttal expert

report of Einer Elhauge, Esq. fkom the current litigation, dated May I I , 2007. I further

understand that this document contains both Amgen confidential infarmation (which is

not accessible to me under the protective order) and Roche confidential information. Based upon what I understand is the Roche confidential information in the report, I have
determined that this document contains confidential information concerning Roche's

pricing strategy for Mircera.

I particular, paragraph 82 contains confidential n

information concerning the anticipated responses of competitors to Mircera's pricing
strategies. This information is protected fiom public disclosure, and in h c t has not been
disclosed to the public in any form, and its disclosure would severely harm Roche for the

reasons detailed above.
30. Roche Exhibit 214 is an excerpt fiom a document entitled FPS Variable

Cost Report for the Quarter Beginning 01 July 2004 which contains Roche variable cost
information regaxding market formulation development & supply costs. This ir$omation

is protected .from public disclosure, and in fact has not been disclosed to the public in any
form: and its disclosure would severely harm Roche for t h e reasons detailed above.

3 1.

Roche Exhibit 215 is an excerpt from a document entitled FPS Variable

Cost Report for the Quarter Beginning 01 October 2004 which contains Roche variable

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cost information regarding market formulation development & supply costs.

This

information is protected from public disclosure, and in fact has not been disclosed to the

public i any form, and its disclosure would severely harm Roche for the reasons detailed n above.

32.

Roche deems it necessary to maintain the confidentiality of the

information contained in the Exhibits i order t safeguard its trade secrets and n o competitive business infarmation and to avoid giving a competitive advantage to
competitors to competitors or other who might use the arma at ion to the detriment of Roche's business.

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33.

Disclosure of the Exhibits in the public record wouId destroy the trade

secret status of the information contained therein and irreparably harm Rache i the n
highly competitive pharmaceutical industry. Accordingly, it is of critical importance that

the Exhibits, which canbin Roche's highly confidential ude secret information, not be disclosed. I declare under penalty of perjury that the foregoing is true and correct.

Executed &!5ay

of June 2007 at Nutley, New Jersey

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CERTlllFJCATE OF SERVICE
1 hereby certify that this document filed through the ECF system wiIi be sent electronicallyto the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on Jme 28,2007.

/s/ Keith E. Toms

Keith E. Toms