UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

IPSEN BIOPHARM LTD.,

Plaintiff,

v.

GALDERMA LABORATORIES, L.P.,

Defendant.

CASE NO. 4:22-CV-00662-O

DEFENDANT’S MOTION TO DISMISS COMPLAINT FOR INJUNCTIVE RELIEF

Defendant Galderma Laboratories, L.P. (“Galderma Labs”) respectfully asks this Court to 

dismiss all claims asserted against it by Plaintiff Ipsen Biopharm Ltd. (“Ipsen”) on the basis of 

forum non conveniens.

I. INTRODUCTION

Ipsen’s case is meritless. But more importantly for purposes of this Motion, it was filed in 

the wrong forum. As Ipsen’s complaint1 makes clear, this dispute arises out of an agreement 

between Ipsen, Galderma S.A., and Galderma S.A.’s “Affiliates” (the “QM Agreement”). It is 

undisputed that Galderma Labs is one of these “Affiliates.” And it is undisputed that the QM 

Agreement contains an arbitration provision subjecting all disputes “arising out of or in connection 

with” it to arbitration with the International Chamber of Commerce in Brussels, Belgium.

1 ECF No. 1, “Complaint” or “Comp.”

Case 4:22-cv-00662-O Document 21 Filed 08/23/22 Page 1 of 13 PageID 114
2

These undisputed facts require dismissal of this case. An arbitration clause “pointing to a 

foreign tribunal requires forum non conveniens dismissal absent unusual circumstances.”2 And no 

such “unusual circumstances” exist here. To the contrary, Plaintiff concedes that an ICC 

arbitration is already well underway in Brussels.

3 And, although conspicuously absent from its 

Complaint, Ipsen has asked the ICC Tribunal for the exact same injunctive relief requested here.

4

 

This Court should dismiss the Complaint and allow the parties to continue arbitrating their disputes 

as they agreed to do under the QM Agreement.

II. BACKGROUND

Galderma Labs is the U.S.-based Affiliate of Galderma S.A.,5 which develops dermatology 

products. On July 9, 2014, Galderma S.A. “acting in its own name and on behalf of its Affiliates” 

entered into the QM Agreement with Ipsen. Ex. A at 1; see also Comp. at ¶ 15. The QM 

Agreement covers “developing, manufacturing, and/or selling QM-1114 (Botulinum Toxin Type 

A), in various jurisdictions, including the United States.” Comp. at ¶ 15.

The QM agreement contains a “Governing Law and Jurisdiction” clause, which reads:

This Agreement shall be governed by the laws of Belgium. All disputes arising out 

of or in connection with the present Agreement shall be finally settled under the 

Rules of Arbitration of the International Chamber of Commerce by three arbitrators 

appointed in accordance with the said Rules. The seat of arbitration shall be 

Brussels and the language of arbitration shall be English.

2

 Fintech Fund, FLP v. Horne, 327 F. Supp. 3d 1007, 1027 (S.D. Tex. 2018), aff’d sub nom. Fintech Fund, F.L.P. 

v. Horne, 836 F. App’x 215 (5th Cir. 2020) (citing Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 

134 S. Ct. 568, 581–83 (2013)). 

3 See Comp. at ¶¶ 32, 35.

4 See Ex. B at 1–2 (Letter from Galderma S.A. to Ipsen, August 3, 2022). 

5 The QM Agreement defines “Affiliates” as having the “meaning given to it in the Europe DDA,” Ex. A at 1, 

which defines “Affiliate” as owning “50% of the share capital and/or of the voting rights of such a person, 

corporation or entity.” Ex. C at ¶ 70 (“Statement of Claim” excerpt; filed by Galderma S.A. on February 28, 

2022, in the ongoing arbitration, ICC Case No. 26409/PAR). Galderma S.A. owns 50% or more of Galderma 

and is therefore an Affiliate under the QM Agreement. Ex. D at ¶ 3 (Donovan Decl.).

Case 4:22-cv-00662-O Document 21 Filed 08/23/22 Page 2 of 13 PageID 115
3

Ex. A at Section 6.5. 

During the summer of 2021, the parties reached a disagreement about matters related to 

applying for regulatory approval of QM-1114 in various jurisdictions, including the United States.

See Comp. at ¶ 30. Ultimately, Galderma Labs’ parent company initiated a request for arbitration 

before the International Chamber of Commerce (“ICC”) in Brussels. Arbitrators were selected in 

the fourth quarter of 2021, and the arbitration is currently pending, with a final decision expected 

sometime before September 2023. Comp. at ¶¶ 30, 32, 35.

On July 18, 2022, Ipsen filed a Request for Interim Measures requesting an order that:

“Galderma . . . refrain from submitting any regulatory filing for QM-1114 in its 

own name . . . in any of the Territories, including any related action unauthorized 

by Ipsen in violation of its intellectual property rights, pending the resolution of 

this arbitration.”

Ex. B at ¶¶ 2, 4. Galderma responded by requesting the opposite ruling:

“Dismiss Ipsen’s request and allow Galderma to proceed with the regulatory filings 

for QM-1114 in Galderma’s own name, on a temporary basis, until the outcome of 

the arbitration is decided . . . .”

Id. at 5. The parties conferred with the ICC arbitrators days later, and the arbitrators agreed to 

issue a decision regarding Ipsen’s requested injunctive relief by mid-September 2022, before the 

at-issue regulatory filings would take place. See Ex. B at ¶ 6. 

Despite the agreement of the parties and the timetable set by the arbitrators, Ipsen filed this

Complaint on August 2, 2022, requesting that this Court grant a temporary restraining order 

“preventing [Galderma Labs] from seeking FDA approval of the QM-1114 product pending the 

outcome of the ICC Arbitration Proceeding,” as well as other, related relief. Comp. at 13. 

In response, on August 3, 2022, Galderma Labs’ parent company sent a letter to Ipsen

restating the current posture of the arbitration and the timetable set out by the arbitrators. For the 

Case 4:22-cv-00662-O Document 21 Filed 08/23/22 Page 3 of 13 PageID 116
4

avoidance of any doubt, Galderma Lab’s parent company included the following stipulation, which 

it thought had been obvious from the parties’ filings before the arbitrators, discussed supra:

[W]e hereby confirm on behalf of Galderma SA and (to the extent necessary) 

Galderma Laboratories LP that it will not make any filing in respect of QM-1114 

with the FDA before the Tribunal has reached its decision on Ipsen’s Request for 

Interim Measures.

Ex. B at ¶ 7. 

Galderma Labs now brings this Motion to Dismiss for Forum Non Conveniens to put an 

end to this unnecessary and improper action before it begins.

III. LEGAL STANDARD 

“[A]rbitration agreements are a specialized kind of forum-selection clause.” Warren v. 

Federal National Mortgage Association, 733 F. App’x. 753, 765–66 (5th Cir. 2018) (internal 

quotations omitted). “The Supreme Court has confirmed that ‘the appropriate way to enforce a 

forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non 

conveniens.’” Demond v. Infiniti HR, LLC, 2018 WL 4145053, at *2 (N.D. Tex. Aug. 30, 2018)

(citing Atl. Marine, 134 S. Ct. at 580).

“Usually, a court applying the doctrine of forum non conveniens must determine whether 

there is an adequate alternative forum, and, if so, must decide which forum is best suited to the 

litigation by considering ‘a variety of private-and public-interest factors and giving deference to 

the plaintiff’s choice of forum.’” Demond, 2018 WL 4145053, at *2 (citing Barnett v. DynCorp 

Int’l, L.L.C., 831 F.3d 296, 300 (5th Cir. 2016)). However, “[t]he existence of a mandatory, valid 

forum-selection clause [] simplifies the analysis in two ways: (1) the plaintiff’s choice of forum 

merits no weight because, by contracting for a specific forum, the plaintiff has effectively exercised 

its ‘venue privilege’ before a dispute arises, and (2) the private-interest factors weigh entirely in 

favor of the preselected forum, so that the district court may consider arguments about publicCase 4:22-cv-00662-O Document 21 Filed 08/23/22 Page 4 of 13 PageID 117
5

interest factors only.” Demond, 2018 WL 4145053, at *2 (emphasis added and quotations 

omitted).

“Where there is a valid and mandatory forum-selection clause [such as an arbitration 

clause], the party defying the forum selection clause bears the burden of establishing that the 

public-interest factors ‘overwhelmingly disfavor’ dismissal.” Demond, 2018 WL 4145053, at *2

(emphasis added) (citing Atl. Marine, 571 U.S. at 63, 67). Further, “[t]he Supreme Court has 

repeatedly emphasized that ‘a valid forum-selection clause [should be] given controlling weight 

in all but the most exceptional cases.’” Id.

IV. ARGUMENT 

A. The Arbitration Provision is Mandatory for Galderma Labs and Ipsen. 

The arbitration provision in the QM Agreement is mandatory for both Galderma Labs and 

Ipsen. The QM Agreement makes clear and the parties agree that Galderma Labs is bound by the 

QM Agreement.

First, the QM Agreement unambiguously states that Galderma S.A. signed the QM 

Agreement “acting in its own name and on behalf of its Affiliates.” There is no dispute that 

Galderma Labs is an Affiliate of Galderma S.A. See supra note 5. 

Second, Ipsen concedes that Galderma Labs is bound by and subject to the QM Agreement 

and its arbitration provision throughout its Complaint. For example, Ipsen explains that “[u]nder 

the QM Agreement, neither [Galderma S.A.], [Galderma Labs], nor their affiliates are authorized

to seek regulatory approval for the covered QM-1114 products on their own.” Comp. at ¶ 18. 

Further, the temporary relief sought in the Complaint is requested “pending the outcome of the 

ICC Arbitration Proceeding,” which Ipsen concedes would govern Galderma Labs’ ability to seek 

regulatory approval in the United States and elsewhere under the QM Agreement, regardless of 

which Galderma entity submits the documents necessary for regulatory approval to be granted. 

Case 4:22-cv-00662-O Document 21 Filed 08/23/22 Page 5 of 13 PageID 118
6

Moreover, if the ICC Arbitration Proceeding eventually binds all Galderma affiliates, as Ipsen 

avers that it will, there can be no opening in the arbitration agreement for this Court to fill.

Third, both Galderma and Ipsen are currently engaged in an arbitration pursuant to the QM 

Agreement, which the parties concede governs the actions of Galderma S.A. and its Affiliates 

regarding regulatory filings for QM-1114. In fact, pursuant to the letter Galderma sent to Ipsen’s 

counsel discussed above, Galderma S.A. has stipulated that it “and (to the extent necessary) 

Galderma Laboratories . . . will not make any filing in respect of QM-1114 with the FDA before 

the [arbitrators] ha[ve] reached [their] decision on Ipsen’s Request for Interim Measures.” Ex. B 

at ¶ 7. In the unlikely case that the pending arbitration was found not to fully cover Galderma

Labs’ conduct—which would fly in the face of the parties’ correspondence and filings discussed 

supra—Ipsen is free to pursue additional relief through arbitration under the QM Agreement.

The QM Agreement thus unambiguously states that it covers both Galderma Labs, as an 

Affiliate of Galderma S.A., and Ipsen. The arbitration provision is mandatory for all parties to the 

Complaint.

B. The Arbitration Provision Covers Ipsen’s Claims.

Ipsen’s disputes arise out of or are in connection to the QM Agreement and therefore fall 

within the scope of the arbitration clause. “‘In determining whether the forum selection clause 

applies [to a specific dispute], the court will assume . . . that federal law controls whether [Ipsen’s 

claims] fall[ ] within the scope of the [arbitration] clause.’” Demond, 2018 WL 4145053, at *4 

(citing Your Town Yellow Pages, L.L.C. v. Liberty Press, L.L.C., 2009 WL 3645094, at *3 (N.D. 

Tex. Nov. 2, 2009)). “The scope of a forum selection clause is not limited solely to claims for 

breach of the contract that contains it.” MaxEn Capital, LLC v. Sutherland, 2009 WL 936895, at 

*6 (S.D. Tex. Apr. 3, 2009). “Whether a forum selection clause encompasses other claims depends 

principally on how broadly the clause is worded.” Demond, 2018 WL 4145053, at *4. 

Case 4:22-cv-00662-O Document 21 Filed 08/23/22 Page 6 of 13 PageID 119
7

“In determining the scope of the forum-selection clause, the court must also look to the 

operative facts underlying the alleged causes of action . . . . Claims that arise out of the contractual 

relationship and implicate the agreement are subject to the forum selection clause.” Demond, 2018 

WL 4145053, at *4 (internal citations and quotations omitted).

The arbitration provision in the QM Agreement is broadly worded and covers a broad range 

of conduct, including “[a]ll disputes arising out of or in connection with” the QM Agreement. Ex. 

A at Section 6.5.

Both of Ipsen’s claims “arise out of the contractual relationship” with Galderma and 

“implicate” the QM Agreement. See Fintech Fund, 327 F. Supp. 3d at 1024, 1027–28 (theft of 

trade secrets claim covered by broad language of arbitration agreement in CEO’s contract with 

employer). Counts I and II of the Complaint allege misappropriation of trade secrets, which Ipsen

defines as the very information and regulatory filings governed by the QM Agreement. Comp. at 

¶¶ 39–61; see also id. at ¶¶ 18, 19 (“The QM Agreement provides that Ipsen owns all regulatory 

approvals,submissions, and issued certificates, together with all data, information, files developed, 

gathered, and drafted by Galderma, which includes [Galderma S.A.] and Defendant [Galderma

Labs]”), 21 (“To protect Ipsen’s intellectual property rights concerning QM-1114, the QM 

Agreement provided that all information related to the agreement and the performance under it

would be kept confidential by the parties.”), 28 (“Under the QM Agreement, the information, 

data, and know-how contained in the draft [regulatory filing] belongs to Ipsen and are Ipsen’s 

trade secrets.”), 44 (The “QM Agreement was intended, among other things, to protect trade 

secrets from unauthorized use or disclosure”), 55 (same) (emphasis added).

Equally telling is the relief sought by Ipsen. Ipsen asks this Court to interfere in the 

regulatory filing process, which Ipsen admits is strictly governed by the QM Agreement, and to 

Case 4:22-cv-00662-O Document 21 Filed 08/23/22 Page 7 of 13 PageID 120
8

prevent Galderma Labs from unauthorized disclosure of the trade secrets or proprietary 

information conveyed and regulated by the QM Agreement. See Comp. at 13, ¶¶ 21, 28, 44, 55. 

Finally, all of the temporary injunctive relief sought by Ipsen, is conditioned on “the outcome of 

the ICC Arbitration Proceeding,” all but conceding that these issues are for the arbitrators in the 

ongoing arbitration to decide.

The disputes and claims asserted in the Complaint both arise out of the parties’ contractual 

relationship and implicate the key provisions of the QM Agreement regarding proprietary 

information and regulatory filings. Therefore, the claims raised by the Complaint are within the 

scope of the arbitration provision.

C. The Arbitration Provision is Enforceable.

“Federal law governs whether [a] forum-selection clause is binding in this 

action.” Demond v. Infiniti HR, LLC, 2018 WL 4145053, at *5–6 (citing Haynsworth v. The Corp., 

121 F.3d 956, 962 (5th Cir. 1997)). “Under federal law, forum-selection clauses are presumed 

enforceable, and the party resisting enforcement bears a heavy burden of proof.” Ginter ex rel. 

Ballard v. Belcher, Prendergast & Laporte, 536 F.3d 439, 441 (5th Cir. 2008) (emphasis added 

and quotations omitted). “Such clauses are prima facie valid and should be enforced unless 

enforcement is shown by the resisting party to be ‘unreasonable’ under the 

circumstances.” Braspetro Oil Servs. Co. v. Modec (USA), Inc., 240 Fed.Appx. 612, 615 (5th Cir. 

2007) (per curiam) (internal quotations omitted). 

A forum-selection clause may only be considered unreasonable if:

(1) the incorporation of the forum selection clause into the agreement was the 

product of the fraud or overreaching; (2) the party seeking to escape enforcement 

“will for all practical purposes be deprived of his day in court” because of the grave 

inconvenience or unfairness of the selected forum; (3) the fundamental unfairness 

of the chosen law will deprive the plaintiff of a remedy; or (4) enforcement of the 

forum selection clause would contravene a strong public policy of the forum state.

Case 4:22-cv-00662-O Document 21 Filed 08/23/22 Page 8 of 13 PageID 121
9

Haynsworth, 121 F.3d at 963. See Demond, 2018 WL 4145053, at *5–6; Fintech Fund, 327 F. 

Supp. 3d at 1027.

Neither party has alleged, nor are there grounds to argue, that the QM Agreement is the 

product of fraud. Nor could Ipsen meet its heavy burden to argue that dismissal of this action 

would deprive it of its day in court, when—right now—arbitrators in Brussels are deliberating on 

the exact issues raised here and have agreed to decide such issues.6 See Ex. B at ¶¶ 2, 4, 6. For 

the same reason, Ipsen cannot argue that dismissing an action would deprive it of a remedy, where 

it is clear both that the ICC Rules allow for comparable mechanisms for temporary relief and Ipsen 

has already sought the same remedies in its Request for Interim Measures pending before the 

arbitrators. See Ex. B at ¶¶ 2, 4. 

Finally, Ipsen cannot meet its burden to show that enforcement of the arbitration clause

would contravene a strong Texas public policy. See Demond, 2018 WL 4145053, at *2 (emphasis 

added) (citing Atl. Marine, 571 U.S. at 67). Both Galderma and Ipsen are sophisticated players in 

a complex industry, who came together to negotiate a commercial agreement. As part of that 

negotiation the parties agreed to the arbitration provision. To the extent Texas has a public policy 

interest in protecting trade secrets, such interest does not override sophisticated parties’ right to 

agree to arbitrate potential disputes. See Fintech Fund, 327 F. Supp. 3d at 1027–28 (no compelling 

public policy under the Defend Trade Secrets Act considered in dismissing a trade secrets case on 

forum non conveniens grounds); see also Hoffman v. Burroughs Corp., 571 F. Supp. 545, 550 

(N.D. Tex. 1982) (“[T]o the extent that policies of the Texas DTPA might be implicitly 

contravened by enforcing a forum selection clause, that policy would be oriented towards 

6 To the extent Ipsen claims that any relief sought by the Complaint is not included in its Request for Interim 

Measures, Ipsen is free to file additional papers under the same procedural posture before the arbitrators. 

Case 4:22-cv-00662-O Document 21 Filed 08/23/22 Page 9 of 13 PageID 122
10

protecting ordinary consumers, as compared with knowledgeable, experienced businessmen.”); 

American Intern. v. Res-Care, 529 F.3d 649, 662 (5th Cir. 2008) (“Texas recognizes a strong 

public policy in favor of preserving the freedom of contract.”) (internal quotations omitted).

Ipsen cannot meet its heavy burden to show that the arbitration clause is unreasonable and 

therefore the arbitration provision is enforceable.

D. The Public-Interest Factors Do Not Overwhelmingly Disfavor Dismissal.

“[F]orum-selection clauses should control except in unusual cases.” See Demond, 2018 

WL 4145053, at *2 (citing Atl. Marine, 571 U.S. at 64, 67). Ipsen cannot meet its heavy burden 

of establishing that the public interest factors overwhelmingly disfavor dismissal. See id., at *2. 

The public interest factors consist of: 

[1] administrative difficulties flowing from court congestion; [2] the local interest 

in having localized controversies decided at home; [3] the interest in having the 

trial of a diversity case in a forum that is at home with the law that must govern the 

action; [4] the avoidance of unnecessary problems in conflict of laws, or in the 

application of foreign law; and [5] the unfairness of burdening citizens in an 

unrelated forum with jury duty. 

Barnett, 831 F.3d at 309.

While the first three and final factors are neutral, it is clear that having this Court engage 

in this action at the same time that an existing arbitration is ongoing pursuant to the QM 

Agreement, in which identical issues are being decided under Belgian Law and ICC Rules, would 

generate unnecessary problems in the conflict of laws. 

This case is not “truly exceptional.” Rather, it’s a simple case. Ipsen’s disputes arise out 

of the QM Agreement and are the current subject of an ongoing arbitration in Brussels undertaken 

pursuant to the arbitration agreement the parties negotiated. Indeed, the arbitrators have agreed to 

issue a decision regarding Ipsen’s requested injunctive relief—the same relief being pursued 

here—by mid-September 2022, before any regulatory filings would take place. See Ex. B at ¶ 6. 

Case 4:22-cv-00662-O Document 21 Filed 08/23/22 Page 10 of 13 PageID 123
11

That means, by the time briefing is complete on this motion, the arbitrators will have likely already 

issued a ruling on this matter. Given that Ipsen cannot meet its heavy burden, this Court should 

dismiss this matter on forum non conveniens grounds. Moreover, allowing this action to proceed 

risks contrary rulings on the same issues from this Court and the arbitrators deliberating in the 

ongoing arbitration. For example, if this Court were to grant the temporary relief requested by 

Ipsen, and the arbitrator were to find that Galderma may proceed with the regulatory process in its 

own name, the parties would be faced with contrary orders requiring lengthy and costly litigation 

to determine the operative ruling. The parties negotiated the QM Agreement to include the 

arbitration provision to avoid exactly these issues.

Accordingly, Ipsen cannot meet its heavy burden to establish that the public-interest factors 

overwhelmingly disfavor dismissal.

V. PRAYER 

For the foregoing reasons, Galderma Labs respectfully requests that the Court dismiss 

Plaintiff’s Complaint and order any other relief to which it is entitled.

Case 4:22-cv-00662-O Document 21 Filed 08/23/22 Page 11 of 13 PageID 124
12

Dated: August 23, 2022 Respectfully submitted,

/s/ Jeremy Fielding

Jeremy Fielding 

Texas Bar No. 17233700

Steve Fahey

Texas Bar No. 24101249

Ruben Alan Garcia

Texas Bar No. 24101787

KIRKLAND & ELLIS LLP

4550 Travis Street

Dallas, Texas 75205

Telephone: (214) 972-1770

Facsimile: (214) 972-1771

jeremy.fielding@kirkland.com

steve.fahey@kirkland.com

ruben.a.garcia@kirkland.com

Attorneys for Defendant

Case 4:22-cv-00662-O Document 21 Filed 08/23/22 Page 12 of 13 PageID 125
13

CERTIFICATE OF SERVICE

I hereby certify that counsel of record who are deemed to have consented to electronic 

service are being served on August 23, 2022 with a copy of this document via the Court’s CM/ECF 

system.

/s/ Jeremy Fielding

Jeremy Fielding

Case 4:22-cv-00662-O Document 21 Filed 08/23/22 Page 13 of 13 PageID 126