Commercial Litigation Clause Samples
Commercial Litigation. The Company was originally formed as a result of a series of transactions it completed pursuant to the Agreement and Plan of Reorganization dated as of February 4, 1996, by and between ▇.▇. ▇▇▇▇▇ & Co. and Fresenius SE (the “Merger”). At the time of the Merger, a ▇.▇. ▇▇▇▇▇ & Co. subsidiary known as ▇.▇. ▇▇▇▇▇ & Co.-Conn. had, and continues to have, significant liabilities arising out of product-liability related litigation (including asbestos-related actions), pre-Merger tax claims and other claims unrelated to National Medical Care, Inc. (“NMC”), which was ▇.▇. ▇▇▇▇▇ & Co.’s dialysis business prior to the Merger. In connection with the Merger, ▇.▇. ▇▇▇▇▇ & Co.-Conn. agreed to indemnify the Company, FMCH [Fresenius Medical Care Holdings, Inc.], and NMC against all liabilities of ▇.▇. ▇▇▇▇▇ & Co., whether relating to events occurring before or after the Merger, other than liabilities arising from or relating to NMC’s operations. ▇.▇. ▇▇▇▇▇ & Co. and certain of its subsidiaries filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code (the “Grace Chapter 11 Proceedings”) on April 2, 2001. Prior to and after the commencement of the Grace Chapter 11 Proceedings, class action complaints were filed against ▇.▇. ▇▇▇▇▇ & Co. and FMCH by plaintiffs claiming to be creditors of ▇.▇. ▇▇▇▇▇ & Co.-Conn., and by the asbestos creditors’ committees on behalf of the ▇.▇. ▇▇▇▇▇ & Co. bankruptcy estate in the Grace Chapter 11 Proceedings, alleging, among other things that the Merger was a fraudulent conveyance, violated the uniform fraudulent transfer act and constituted a conspiracy. All such cases have been stayed and transferred to or are pending before the U.S. District Court as part of the Grace Chapter 11 Proceedings. In 2003, the Company reached agreement with the asbestos creditors’ committees on behalf of the ▇.▇. ▇▇▇▇▇ & Co. bankruptcy estate and ▇.▇. ▇▇▇▇▇ & Co. in the matters pending in the Grace Chapter 11 Proceedings for the settlement of all fraudulent conveyance and tax claims against it and other claims related to the Company that arise out of the bankruptcy of ▇.▇. ▇▇▇▇▇ & Co. Under the terms of the settlement agreement as amended (the “Settlement Agreement”), fraudulent conveyance and other claims raised on behalf of asbestos claimants will be dismissed with prejudice and the Company will receive protection against existing and potential future ▇.▇. ▇▇▇▇▇ & Co. related claims, including fraudulent conveyance and asbestos claims, and indemnifica...
Commercial Litigation. On April 5, 2013, the U.S. Judicial Panel on Multidistrict Litigation ordered that the numerous lawsuits pending in various federal courts alleging wrongful death and personal injury claims against FMCH and certain of its affiliates relating to FMCH’s acid concentrate products NaturaLyte® and GranuFlo® be transferred and consolidated for pretrial management purposes into a consolidated multidistrict litigation in the United States District Court for the District of Massachusetts. See, In Re: Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation, Case No. 2013-md-02428. The Massachusetts state courts and the St. Louis City (Missouri) court subsequently established similar consolidated litigation for such cases filed in Massachusetts county courts and St. Louis City court. See, In Re: Consolidated Fresenius Cases, Case No. MICV 2013-03400-O (Massachusetts Superior Court, Middlesex County). These lawsuits allege generally that inadequate labeling and warnings for these products caused harm to patients. In addition, similar cases have been filed in other state courts. On February 17, 2016, the Company reached with a committee of plaintiffs’ counsel and reported to the courts an agreement in principle for settlement of potentially all cases. The agreement in principle calls for the Company to pay $250,000 into a settlement fund in exchange for releases of all or substantially all of the plaintiffs’ claims, subject to the Company’s right to void the settlement under certain conditions, including if more than 3% of all plaintiffs reject the settlement or the distribution of rejecters meet certain criteria. As subsequently amended with the courts’ approval as to the applicable timetable, plaintiffs must advise FMCH of acceptance of the settlement by November 7, 2016; the Company has until November 15, 2016 to exercise any rights to void the settlement; and payment of the settlement amount must be made in November 2016 if the settlement is confirmed. The Company’s affected insurers have agreed to fund $220,000 of the settlement fund, with a reservation of rights regarding certain coverage issues between and among the Company and its insurers. The Company has accrued a net expense of $60,000 for consummation of the settlement, including legal fees and other anticipated costs. Subsequent to the agreement in principle, the Company’s insurers in the AIG group initiated an action for declaratory judgment in New York state court advancing various argument...
Commercial Litigation. On August 27, 2012, Baxter filed suit in the U.S. District Court for the Northern District of Illinois, styled ▇▇▇▇▇▇ International Inc., et al., v. Fresenius Medical Care Holdings, Inc., Case No. 12-cv-06890, alleging that the Company’s Liberty® cycler infringes certain U.S. patents that were issued to Baxter between October 2010 and June 2012. The Company believes it has valid defenses to these claims, and will defend this litigation vigorously. On April 5, 2013, the U.S. Judicial Panel on Multidistrict Litigation ordered that the numerous lawsuits filed and anticipated to be filed in various federal courts alleging wrongful death and personal injury claims against FMCH and certain of its affiliates relating to FMCH’s acid concentrate products NaturaLyte® and Granuflo® be transferred and consolidated for pretrial management purposes into a consolidated multidistrict litigation in the United States District Court for the District of Massachusetts, styled In Re: Fresenius Granuflo/Naturalyte Dialysate Products Liability Litigation, Case No. 2013-md-02428. The Massachusetts state courts subsequently established a similar consolidated litigation for such cases filed in Massachusetts county courts, styled In Re: Consolidated Fresenius Cases, Case No. MICV 2013-03400-O (Massachusetts Superior Court, Middlesex County). These lawsuits allege generally that inadequate labeling and warnings for these products caused harm to patients. In addition, similar cases have been filed in state courts outside Massachusetts, in some of which the judicial authorities have established consolidated proceedings for their disposition. FMCH believes that these lawsuits are without merit, and will defend them vigorously.
Commercial Litigation. The Company was formed as a result of a series of transactions pursuant to the Agreement and Plan of Reorganization (the “Merger”) dated as of February 4, 1996 by and between W.▇. ▇▇▇▇▇ & Co. and F▇▇▇▇▇▇▇▇ AG. At the time of the Merger, a W.▇. ▇▇▇▇▇ & Co. subsidiary known as W.▇. ▇▇▇▇▇ & Co.-C▇▇▇. had, and continues to have, significant potential liabilities arising out of product-liability related litigation, pre-Merger tax claims and other claims unrelated to NMC, which was G▇▇▇▇’s dialysis business prior to the Merger. In connection with the M▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ & Co.-C▇▇▇. agreed to indemnify the Company, and NMC against all liabilities of W.▇. ▇▇▇▇▇ & Co., whether relating to events occurring before or after the Merger, other than liabilities arising from or relating to NMC’s operations. W.▇. ▇▇▇▇▇ & Co. and certain of its subsidiaries filed for reorganization under Chapter 11 of the U.S. Bankruptcy Code (the “Grace Chapter 11 Proceedings”) on April 2, 2001.