forced mint of the agreement that it negotiated and that the parties agreed to that agreement does not permit the defendant believe she is ok to do what it has done here namely supply c r the anti depressant product that's a dish you in this case to another generic pharmaceutical company to license excuse me to market and sell to downstream customers and the district court here  not considering asking extrinsic including trade usage terms your honor that is one of the points of error and one of the reasons why the district court decision must be reversed under controling circumstances surrounding the negotiation the contract and of course the course of the negotiations of the contract extol can't modify an unambiguous your honor even where the language on its face appears to in an ambiguous the new jersey supreme court has made clear that you must consider that to inform what the meaning is the words that appear on the face the agreement itself the new jersey supreme court has held are not always determin instances in which the words of the parties true used actually embody their intent and it's a black and white issue for example where mai ling to be alleging here that the product that authorized generic c r could only be sold ten years after mylan launched its agreement even though the agreement says two years that would be an issue where extrinsic evidence would not serve to inform the meaning of the agreement but hear your honour's and e agreement itself in divine meaning what the intent of the parties was the district court judge did not in fact explicitly say i've considered mylan the non movements evidence and i don't find it to be a limit as to what these parties meant here in the context construing those words in that section of the agreement that information wasn't considered but regardless or orders because this is the novo review the grant of a summary judgment motion whether or not the district court judge actually considered it the evidence is here today the record is in front of your honor's and the record is very clear that the parties did intend here a meeting entirely consistent with the actual words in this second information does go to what the meaning of marketing and selling is and that information was presented by my own it took the form of an expert report prepared by a pharmaceutical marketing executive of many years in the business both with generic products and with brand products and that evidence showed that marketing and selling of an a g m product denotes to people knowledgeable in the industry activities that are targeted to moving the product closer to the end user down the supply chain not activities directed to an entity like app attacks another pharmaceutical company that sit at the same you're saying that the marketing and selling has to be by g s k or an affiliate and judge preside over here is saying ok they sold it just k or the affiliate sold it again after two years they can sell to anybody they want and you're saying no that's not correct that's not ways understood because in effect what they sold that they didn't really market it and what was contemplated is that th would market and sell to persons down the chain but not not another branch of the company as i corrected that's a fairly good synopsis of what the what mileage the argument is in respect to what we call the second exception that's in that second paragraph that the evidence clearly shows and we think the language itself shows that the parties intended that would be g s k words affiliate that would be doing the marketing and selling of the a g product and  argument that you should divorce those words and in essence cross out the word and insert the word or but he declined to do that which was probably the right decision he went on then you saw no to conclude that in fact  marketed and sold that was one of the another point of error really a separate and independent point of a or even setting aside is erroneous construction that they can market and sell to whomever they want the finding then the g s k here on this record on summary judgment only supported the conclusion that it has market been sold is really unsustainable the conclusion was based on judge dishonest opinion that the inclusion of this products in a portfolio of products that were conveyed by g s k to app attacks as part of assessment part of a settlement was marketing activity in your honour's on its face i would submit that that is a dubious conclusion that as a matter of law one can conclude that the inclusion of a product in a portfolio of products that are part of a package of settlement consideration is marketing they're just  and the same thing as you're quite right your honor in the first part of your question i assume that you meant that in giving it to the pharmacy in your hypothetical unit they were going to be actually marketing and selling it they are going to be engaging in the activities that have strived in the agreement they were two of the prescriptions but the but g s k would be required if it were to be trying to take advantage of this what we call the second exception it would be required to market and sell the product to that pharmaceutical company and the pharmaceutical company then could or should do the i meant to say the retail pharmacy that retail pharmacy event could use whatever means are appropriate for it in turn to get it to into the hands of consumers they feel the prescriptions here yes that yes that's ok to downstream or else your problem then is a marketing and selling to a third party it's marketing and selling to a pharmaceutical company at the same level in the supply chain as g s k and mylan that is the issue that we have with the language and the evidence respectfully shows that our interpretation is supported by the industry understanding of what that phrase means the words i mean doesn't that have a fairly generous connotation your honor the phrase has to be construed together as you know an aggregate whole in marketing and selling or buzz words sort of like frolic and detour in our business marketing and selling are the words that pharmaceutical individuals knowledgeable the pharmaceutical business used to do know what you're doing to move the product down the supply chain it's not what you do if you have a relationship with one of your competitors where we're going to help each other out could very well have have arrived at the decision that it made had considered the extremes again your honor respect i think that the district court would not have arrived at the same conclusion it did because we think the evidence supports our case but our argument is of course we think that this should really be going to a jury you know mylan is of course only looking forward to seeing court well it's not looking before that it should go back to the district court to consider extrinsic evidence the the district court construction would we it's our position on this appeal that the evidence would not support a finding that the district that the interpretation that she is k is a specialist is the only reasonable interpretation of a minimum you want us to  occurred but it doesn't require that this court determined as between alternate rees water potations which is the correct one but as a as a fall back position would you be  mileages breach of the covenant of good faith and fair dealing claim the purpose of that claim is of course to protect the deal that the party struck protect the non movement's interest in getting the benefit of that bargain here the district court essentially discounted mileage is evidence as to what the parties intended at the time of contracting that is that she escaped would only be permitted to market and sell to downstream customers and it would not be permitted to supply another generic company with the product to be sold in competition with miley but isn't that just illegitimate interpretation of the content and no your honor it's not  the implied covenant can't be considered at all because that evidence is somehow at odds with what the district court judge thought was the unambiguous meaning of the language of the agreement and your honors were that always the case a district court would never be able to take account of evidence of what is this benefit of the bargain the analysis would simply start and end with what the district court thinks the plain meaning is of the words of the contract in essence the error is very similar t it so i yes right the amendment itself provides that all terms that aren't specifically amended in the amendment continue forward so that there was a provision i think you're referring to an article seven of the original  i was referring to the change in the economic value because obviously the amendment changes the economic value that you are going for i thought you were here arguing that therefore that provision was it your you're right your honor one of the defects in the district court opinion is that it would effect if the district court opinion were allowed to stand in its general up to stand it would effect a very very material economic change in the party's positions because rather than mylan simply facing the prospect of competition by g s k or one of its corporate affiliates instead mylan would face competition by apple techs and any other generic company that's in the market obvious the universe of potential competitors is opened up or magically by the district court opinion that creates an unnecessary tension within the document because this amendment was negotiated in the context of a term in the original agreement that said if you are going to amend this agreement because of the f t c review which is what happened here the parties need only enter into an amendment if it's not going to change the economics of the deal to the parties and that's what happens under the district court opinion you get rid of that tension if you go and you accept mylan interpretation is a reasonable one because the universe of potential competitors is narrowed significantly so that you do not see this material impact that is caused by the construction adopted by the district court and damages your honor that as a fact intensive inquiry it's expert evidence in the form of a damages report by its expert that basically opines that mylan has suffered tens of millions of dollars of damages as a result of the unlawful conduct of g s k and app attacks jeus k takes the position well we have an alternative factual scenario where we don't think that you have suffered any damages even if we compete lawfully but that is an alternative factual scenario that they have proposed their own expert at her deposition testified that any consideration of a but for hypothetical damages scenario must take account of the record evidence and here mylan is a deuced substantial record evidence to show that the but for hypothetical damages scenario posited by g s k is insupportable first she escaped posits that it was going to compete directly in the generic market but the evidence is clear admitted that his never itself engaged in this type of marketing and selling an activity of a generic product it's also admitted that it has not have a subsidiary to do that nor does it have any current plans agent is what the record does show is that there has only been one instance in which g s k worked with the sales agent to try to launch an authorized generic product i do posed a witness who was involved in that program and she testified that the program was a failure and that g s cases spend it after only one year this record your honour's simply does not allow the conclusion that competition by g s k that  conforms with the agreement under mylan is interpretation would have resulted in the precise same harm as has actually resulted from the unlawful competition by app attacks here so you honour's respectfully damages is simply not a basis upon which summary judgment can be granted you and i think your lawyers that much mr j where we said under new jersey of all it's clear that even if a contract on his face is is unambiguous you can introduce extremes of governance to try to show that there was a completely different understanding interpretation is to determine the party's intention or by looking at the actual written language in the contract and then extrinsic evidence has a limited role sure you have to consider it but you can only consider it to the extent that it shows an intention as reflected by the actual words that are used in the contract you cannot use it to modify curtail or enlarge the text of the contract and if there is evidence of an intent that's not expressed and that in that look at the circumstances leading up to what the negotiations look at custom and usage you look at the interpretation placed on the disputed provision by the parties conduct and that's what your opponent is trying to do here and it would seem that the court has to deal with extrinsic evidence here and just can't ignore it i agree that the district court industry understanding close quote and then it goes on to say that you cannot use an industry understanding to modify the express language of an agreement which this court held in dun and bradstreet versus grace consulting an international union for so unambiguous but i don't go any further as to where i read it you're saying that's not the case i don't believe that is the case i believe in this case that a five which is which is the first page of this decision he expresses states he considered the party submissions by itself under new jersey law that should be sufficient but he then goes on to analyze each forensic evidence he does it on a thirteen with regard to the common industry understanding or purported common common industry understanding another point that your opponents made and that is that when you look at the first paragraph of two we it talks about during the exclusivity period if there is a infringement s a settlement in connection with a generic manufacturer who has filed for an end up that you can and that parties refer to as a third party you can settle and allow them to sell the second paragraph the one that you're focusing on says g s k or its affiliate doesn't use the word for any third party that would have been obviously been the thing that nails this shot and yet not only does the first paragraph use the word third party but the supply and distribution agreement page a like thing six ninety nine specifically says that the g s k or its affiliate or any third party can sell in the in a particular territory  if it was in there if knowing what i know today and how this litigation unfolded absolutely but i don't believe it needs to be any clearer because if you take my lands argument to its logical extreme that means g s k cannot sell to any third party it has to sell directly to patients it has to open up drug stores on every corner and that could not possibly have been the intent that is reflected in what is actually written just k had a well established practice of selling  believe a pigeon or the reply brief they can see that they were aware that yes he had such a practice and now they're trying to attempt to argue that it is actually consistent with their interpretation of the greenman of looking at the appendix eleven twenty they say that they were not aware as of right as of september twenty seventh two thousand and seven of j f k having sold authorized generics directly that is through an affiliate or subsidiary to pharmacy chain were saying the same thing judge that is in our favor they said that they are unaware of just doing anything other than their standard practice i e they don't and they've never heard of g s case selling to a wholesaler retailer pharmacy chain which is what they argue the interpretation should be rather as  don't you have to consider extrinsic evidence but you have to consider and deal with a custom and usage i think the judge did i think the dischord did deal with custom and usage and looked at it and it found that you could unsupported divorce in the facts of the case testimony from my alliance expert i agree which is that eight hundred fifty five to fifty six is expert court you'll see he doesn't he doesn't cite anything to support his industry understanding and his deposition testimony at age twenty zero five through seven he's an expert in feeling but at age twenty six zero five zero seven i asked him did you rely on any evidence from this case no you rely on any documents from g s k you know documents from island no industry publications no industry standards he didn't talk to anyone injury didn't present in the expert report yourself to say that marlise expert analysis and opinion are totally incorrect on their face or on i would say it's incorrect because the plain an ordinary meaning a generic company that is a meaning of sell that is within the express language of the original agreement and there's nothing to suggest that they meant anything to in this second amendment with regard to the first paragraph of paragraph two e judge ambrose referred to earlier that that deals with a completely different scenario in a different product paragraph one deals with a generic drug being able to sell age in a generic company being able to sell a generic drug under an anda that is not an authorized generic and authorization arc which is defined for the first time in the second paragraph is the drug that g s k can sell under its and the way these are two different drugs they have two different triggers it deal with two different scenarios so the fact that just a could have licensed a generic company six months after milan launched to sell its generic drug under its a and d n a has nothing to marketing and selling and what happened here is that it doesn't say or any third party g s k is not marketing it's merely selling as part of this settlement agreement tax so i keep coming back to you know again maybe you win but if you're not if you're just selling and you're not marketing and selling and it's really the third party in this case the text is doing the marketing and selling all to miller why can't they when are they allowed to bring in the evidence that may show contrary to what you're arguing to the to the district court because import into the united states a generic version milans in house and thirty six council testified that and in that case is can be treated as an or is it your interpretation of marketing and selling under  several responses to that which is the first thing is that that provision simply doesn't apply to this amendment the provision regarding no material change to the economic value of the transactions only applies if you get a negative response milan has always insisted in the record is did get a negative response and that's why you you were in to do to the amendment your honor mylan has always insisted from day one that the parties never received a negative response that is at a fifteen seventy four and a fifteen eighty three rather mylan insisted cannot be treated as a negative response but it be characterized as a resubmission not under section seven see that under section seven d and they only did so in order to acquire a second thirty day period for f t c review further i think any reading of the second amendment that suggests that it did not change the value is not giving the pain an ordinary meaning to this language that should have in fact my own concedes that its interpretation is an reasonable one in its reply brief a page sixteen and its blue brief a page fifty it already is that the district court's interpretation would curtail its exclusivity by six years that is contrary to the name is eric abraham i represent the appetites the fence in this case i must confess i feel a little bit like the tail of the dog the briefing you're on is rather be the tail yeah it's always it's always nice to go to the radar sometimes i agree that much of the intellectual work by this court is obviously focused on the breach of contract issue and i have my colleague who's address that and i don't intend to revisit those subjects because in many respects the allegations against app attacks were properly dismissed irrespective of the resolution of the breach of contract issues with what knowledge did apa techs learned not enough to impose liability what happened techs learned was that there was an agreement that there was a royalty payment that there was a confidentiality provision within that agreement that precluded j f k from actually handing the agreement over to apa text or and so she never saw that's correct sir this isn't a case of willful blindness however because once appetite's learn the existence of this agreement it took steps carefully designed by various negotiating council to address the lack of knowledge about the specifics of the agreement specifically requesting and receiving specific representations and warranties by j f k that you asked for a copy of the agree yes or if you think you didn't get one yes or in the specific reason that the that the agreement was not provided was because of the confidentiality provisions in and j f k greenman now one might wonder was it reasonable for app attacks to actually accept that representation and warranty and and shouldn't have asked maybe a third or fourth time and been rebuffed a third or fourth time and the answer to that question was provided to me by the vice president and general counsel of milan when i had posed him he was the the individual who actually signed the second amendment between j f k mylan and his testimony was straightforward and simple representation and warranty the conduct of app attacks simply does not rise to the level of let's call it wrongfulness that the law in new jersey requires for a tortious interference claim to to stick you have a situation where obviously mile an app attacks our competitors and the law under jersey creates a heightened standard for conduct in that in that circumstance and when we look at the cases and we look at the examples in the restatement you see things like physical violence misrepresentations abuse of legal process none of those factors are present here you have a party app attacks who didn't even seek out the license for the  generic it wanted cash and a lot of it and j f k wanted to settle a very contentious litigation didn't want to hand over quite that much cash and therefore offer to happen tax the license for paroxetine essentially as a way to create a stream of revenue or stream of income to meet what happened taxes bottom line requirements were from the seller and under new jersey law that is not sufficient to meet the requirements for tortious interference so we respectfully submit to your honor that irrespective of the resolution of this issue which is clearly troubling to the court on the second amendment whether or not it was breached summary judgment was properly granted by judge his honor with respect that that's thank you thank you thank you very much  thank your honour's i'd like to start just by noting that i did misspeak during the first part of my argument when i was discussing at what point in the opinion judge the sato rejected violence custom and practice evidence it in the context of the breach of contract claim however the judge dishonest only considerate it and actually did not consider it simply rejected it when he was discussing the meaning of the word selling the broader point here you affiliate those words are not defined there really cannot it is not a position that can be maintained that where those words are not defined and they are used in the context of a specific industry evidence as to the meaning of those undefined words in this particular industry can simply be rejected and we don't know all the evidence the judge personified considered but we do know that he looked at that expert report and he said i'm not going to give it any weight that has to be error as a matter of law it is further an error as a matter of law that judge facade of decided then having rejected evidence as to the meaning of that undefined term marketing went on then to construe the evidence as a matter of law against the non movement and he concluded that the settling of antitrust claims constitutes marketing again without having to find what marking is and judge for solid did not address my allowance evidence of least not in the opinion of my lens evidence which goes counter the to the conclusion that   s k has ever done any marketing in fact the agreement the g s k and app attacks entered into in respect of this product specifically says it's our protect that is solely responsible for the marketing of this product moreover that agreement again via pelleas own words describe what they think marketing means none of those words include settling hentai trust claims and there is other district court those issues really must be returned to the district court for a jury to consider a trial and the other question no thank you thank you case was extremely well argued by all sides