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Novartis Pharmaceuticals Corp. v. Bausch & Lomb, Inc.

2008 WL 4911868 (U.S. Dist. Ct. D. N.J. 2008) (Unpublished)

CONTRACTS; BREACH — A breach of contract claim may not also be pled as a tort claim unless a legal duty independent of the contract itself has been violated.

Two businesses entered into a co-promotion agreement whereby the sales force of the first would aid in the marketing of an ocular implant produced by the second. The agreement required the marketers to make a certain minimum number of sales calls and achieve certain sales, measured on a quarterly basis. After two quarters of failure to meet the required goals, the manufacturer told the marketer that it was terminating the agreement based on that failure. A payment was wired to the marketing company. It was identified as full and final for its services under the agreement. The marketing company sued the manufacturer.

The Court rejected the claim of breach of implied covenant of good faith and fair dealing, noting that such a cause of action arises when a party to a contract acts in a manner that, although not expressly forbidden by any contractual provision, would deprive the other party of the right to receive a benefit under their agreement. Here, the Court found that the marketer set forth no distinct facts in its complaint to support an independent claim for a breach of the implied covenant of good faith and fair dealing, especially in light of an earlier count for anticipatory breach of contract.

The Court next rejected the cause of action for misappropriation of confidential information in violation of common law principles because the pleading did not allege an additional violation of any legal duty independent of the contractual obligations of the parties. It held that the marketing company had separately pled a breach of the parties’ confidentiality agreement already based on contractual principles. Accordingly, the Court held that a breach of contract claim may not also be pled as a tort claim unless a legal duty independent of the contract itself had been violated.

The Court also held that the marketing company failed to state a claim for defamation. Such a claim requires communication to a third-party of a defamatory, false statement of fact about a party. The Court found the marketer’s claim that the manufacturer’s asking customers whether the marketing company had solicited them for sales was insufficient to plead a claim for defamation. Lastly, it denied a claim for tortious interference with prospective economic advantage because the marketing company failed to set forth any facts showing an existing or reasonably prospective economic or contractual relationship. The Court noted that, at a minimum, such a claim requires an allegation of specific prospective contracts that were interfered with, and the marketing company only pled lost business from unknown, unsolicited or hypothetical customers.


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