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Ixchel Pharma, LLC v. Biogen, Inc.

United States Court of Appeals for the Ninth Circuit

May 15, 2019, Argued and Submitted, San Francisco, California; July 16, 2019, Filed

No. 18-15258




We ask the California Supreme Court to resolve two open questions of state law. First, we need guidance in determining whether section 16600 of the California Business and Professions Code applies only to contracts between employers and employees, or also applies [**2]  to contracts between two businesses. Second, the California Supreme Court has held that a plaintiff must plead an independently wrongful act in order to state a claim for intentional interference with an at-will employment contract. We need guidance, however, in determining whether this requirement applies to contracts outside of the employment context, as two California Courts of Appeal districts have suggested that it does not. Accordingly, we certify the following questions:

Does section 16600 of the California Business and Professions Code void a contract by which a business is restrained from engaging in a lawful trade or business with another business?

Is a plaintiff required to plead an independently wrongful act in order to state a claim for intentional interference with a contract that can be terminated by a party at any time, or does that requirement apply only to at-will employment contracts?

Our phrasing of the questions should not restrict the Court's consideration of the issues involved. The Court may rephrase the questions as it sees fit in order to address the contentions of the parties. If the Court agrees to decide these questions, we agree to accept its decision. We recognize that the Court has a substantial caseload, but we [**3]  submit these questions in the interests of comity and because of their significance for business torts in California.

Ixchel Pharma is a biotechnology company that develops small-molecule drugs for the treatment of mitochondrial disease. Ixchel has been working on the development of an experimental therapeutic drug to treat Friedreich's ataxia, a rare neurological disease. The active pharmaceutical ingredient in Ixchel's drug is dimethyl fumarate.

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930 F.3d 1031 *; 2019 U.S. App. LEXIS 20997 **; 170 Lab. Cas. (CCH) P61,979; 2019-2 Trade Cas. (CCH) P80,842; 2019 WL 3227987

IXCHEL PHARMA, LLC, Plaintiff-Appellant, v. BIOGEN, INC., Defendant-Appellee.

Prior History:  [**1] Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding. D.C. No. 2:17-cv-00715-WBS-EFB.

Ixchel Pharma,LLC v. Biogen Inc., 2018 U.S. Dist. LEXIS 25202 (E.D. Cal., Feb. 9, 2018)


wrongful act, terminate, questions, parties, intentional interference, at-will, contracts, dimethyl, fumarate, Professions, contractual relationship, employment contract, restrained, employment context, engaging, argues, void, prospective economic advantage, clinical trial, district court

Labor & Employment Law, Conditions & Terms, Trade Secrets & Unfair Competition, Noncompetition & Nondisclosure Agreements, Antitrust & Trade Law, Trade Practices & Unfair Competition, State Regulation, Scope, Torts, Contracts, Intentional Interference, Elements, Commercial Interference, Business Relationships, Intentional Interference