Rapid Pharmaceuticals AG v. Kachroo

180 F. Supp. 3d 96, 2015 U.S. Dist. LEXIS 176333, 2015 WL 10434872
CourtDistrict Court, D. Massachusetts
DecidedDecember 23, 2015
DocketCivil Action No. 15-13161-NMG
StatusPublished
Cited by2 cases

This text of 180 F. Supp. 3d 96 (Rapid Pharmaceuticals AG v. Kachroo) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rapid Pharmaceuticals AG v. Kachroo, 180 F. Supp. 3d 96, 2015 U.S. Dist. LEXIS 176333, 2015 WL 10434872 (D. Mass. 2015).

Opinion

MEMORANDUM & ORDER

GORTON, United States District Judge

I, Introduction

This action was brought by Rapid Pharmaceuticals AG (“Rapid AG”) against Gay-tri Kachroo (“Kachroo”), the former Chief Executive. Officer, General Counsel and Chairman of the Board of Rapid AG, and her newer company, Arise Biopharma, Inc. (“Arise”). In its complaint, Rapid AG alleges that Kachroo has attempted to strip the company of its core assets, including intellectual property and third party contracts, and transfer them to Arise. The complaint alleges six causes of action, including claims for intentional interference with contractual relations, intentional interference with advantageous business relationships and breach of fiduciary duty.

Pending before the Court is plaintiffs motion for a preliminary injunction to enjoin defendants: 1) from interfering with Rapid AG’s contractual and business relationships, 2) from transferring Rapid AG’s property to Arise and 3) to reinstate to Rapid AG any rights, contracts, relationships or other property already transferred to or misappropriated by Kachroo and/or Arise.

Also pending is defendants’ motion to stay the proceedings in this case in deference to defendant’s pending case in Switzerland to determine the legitimacy . of Rapid AG’s sitting Board of Directors. For the reasons that follow, the motion to stay will be denied and the motion for a preliminary injunction will be allowed, in part, and denied, in part.

II. Background and Procedural History

A. The Formation and Change of Governance of Rapid AG

Rapid AG is a corporation organized under the laws of Switzerland with its principal place of business in Baar, Switzerland. It was founded in 2007 by researchers Dr. Candace Pert (“Pert”) and Dr. Michael Ruff (“Ruff’) along with a businessman named Michael Laznicka.

Rapid researches. and develops drugs based on the compound Peptide-T. Currently, the company’s most important project involves testing the potential use of Peptide-T as a drug to treat Progressive Multifocal Leukoencephalopathy (“PML”), a degenerative brain disease for which no other treatment has ever been found. Rapid AG claims that it acquired a patent and other rights to perform work on Peptide-T through a Data Transfer Agreement with Merribeth Adams (“Adams”) and Jeffrey Galpin (“Galpin”) and their associated entities Advanced Immuni-T and Peptide-T Holdings, Inc., in December, 2013.

Gayle Kachroo (“Kachroo”), an attorney based in Cambridge, Massachusetts, served as the Chief Executive Officer, General Counsel and Chairman of the Board of Rapid AG beginning in August, 2012. Kachroo is also a shareholder in Rapid AG. Rapid AG contends that during the time she was a director and officer of the company, Kachroo executed a complicated scheme to gain further control over and ownership of Rapid AG by trans[99]*99ferring the company’s assets to Arise, a new company that she formed. According to Rapid AG, Kachroo concocted a story about Dr. Ruffs patent fraud in an attempt to convince the Rapid AG Board of Directors at a March, 2015 meeting that the company needed to undergo liquidation and “restructuring” in order to free the company from the taint of the alleged fraud.

At that meeting, Kachroo provided the Board with copies of a “Multilateral Settlement Agreement” that was intended to rescind the Data Transfer Agreement, transfer intellectual property rights back to Adams and Galpin and license patent rights to Arise. At that time, Rapid AG had also incurred significant corporate debt, and an internal “creditors committee” had been convened to work with creditors to subordinate and reduce the company’s debt in order to avoid bankruptcy. Rather than following the plan that the committee proposed, however, Kachroo recommended to the Board that the company should file a bankruptcy petition in Switzerland.

According to Rapid AG, the Board approved neither the Multilateral Settlement Agreement nor a liquidation of the company’s assets. Moreover, the shareholders declined to approve a liquidation, which is required by both the law of Switzerland and Rapid- AG’s Articles of Association.

On June 15, 2015, Kachroo filed a petition for the voluntary bankruptcy of Rapid AG in Switzerland. She and the rest of the sitting Board then resigned as directors and officers of the company although the reason for such resignations is unexplained. On July 2, 2015 the bankruptcy was suspended and Rapid AG was allowed to resume operations under Swiss law. The next day Rapid AG held a shareholder meeting and elected a new Board of Directors, which promptly brought this lawsuit.

B. Rapid AG’s Current Research

Rapid AG is currently in the process of working with the U.S. Food and Drug Administration (“FDA”) to gain approval to perform clinical trials using Peptide-T for the treatment of PML. In December, 2014 and January, 2015 the FDA sent Rapid AG requests for additional data that the agency requires before it can allow Rapid AG to begin clinical trials. Rapid AG had contracted with several outside vendors to conduct the work needed in order to generate the required data.

Rapid AG claims, however, that those vendors have since been contacted by Kachroo and told that Rapid AG’s contracts have been assigned to Arise. Several of the vendors have now suspended then- work and refuse to communicate with Rapid AG. The FDA has made frequent inquiries of the company’s chief regulatory officer about the requested data and Rapid AG asserts that its ability to obtain approval to begin Peptide-T clinical trials is now in jeopardy.

C, Actions Taken in Switzerland

Since Kachroo attempted to put Rapid AG into bankruptcy in Switzerland and resigned her position on the Board, she has filed a series of actions in the Swiss courts contesting the validity of the election of the current Board of Directors. She contends, that the election of the current Board was tainted by several procedural defects which render it invalid. She further avers that if a valid election were to be held now, she would be reinstated to the Board.

On August 5, 2015 Kachroo filed a “request for conciliation” in a Swiss court, which is a prerequisite for her right to file a complaint for permanent relief. The re[100]*100quest was granted and, on August 10, 2015, Kachroo filed a request for ex parte provisional relief and interim measures, alleging that the new Board of Directors of Rapid AG was not legally constituted and requesting reinstatement of the former board, including Kachroo herself. The Swiss court denied her request for ex parte relief on September 3, 2015. On September 16, 2015 the request for interim measures was dismissed due to Kachroo’s failure to pay the required court fees. On October 12, 2015, Kachroo filed both a second request for provisional measures and a request for permanent relief.

In their request for a stay of proceedings, defendants submit that this Court should defer to the proceedings in Switzerland because the claim at issue there, i.e. the alleged illegitimacy of the sitting Board of Directors, has been pled as an affirmative defense in this case.

D. Procedural History of This Case

Plaintiff filed its complaint in this case on August 14, 2015. On October 14, 2015 plaintiff filed the pending motion for a preliminary injunction.

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Bluebook (online)
180 F. Supp. 3d 96, 2015 U.S. Dist. LEXIS 176333, 2015 WL 10434872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rapid-pharmaceuticals-ag-v-kachroo-mad-2015.