FILED: NEW YORK COUNTY CLERK 07/31/2013 INDEX NO. 652683/2013 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/31/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------- x ORAPHARMA, INC., JOHNSON & JOHNSON, and JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Petitioners, Index No. V. : VERIFIED PETITION TO CONFIRM ARBITRATION ORAL CANCER PREVENTION INTERNATIONAL, INC., : AWARD Respondent. --------------------------------- x Petitioners OraPharma, Inc. ("OraPharma"), Johnson & Johnson ("J&J"), and Johnson & Johnson Consumer Companies, Inc. ("JJCCI," and, together with OraPharma and J&J, "Petitioners"), by their undersigned counsel, hereby allege and say: This is a special proceeding under Article 75 of the New York Civil Procedure and Rules, CPLR 7502, 7510, and 7514, seeking an order confirming and entering judgment upon an arbitral award, a copy of which is annexed hereto as Exhibit A, delivered to the parties on June 4, 2013 by a three-arbitrator panel appointed in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA") in the arbitration captioned Oral Cancer Prevention International, Inc. v. OraPharma, Inc., Johnson & Johnson, and Johnson & Johnson Consumer Companies, Inc., AAA No. 13 122 Y 01477 12 (the "Arbitration") THE PARTIES 2. Petitioner OraPharma is, and at all relevant times has been, a Delaware corporation with its principal office located in Horsham, Pennsylvania. 633Y227v,2
3. Petitioner J&.J is, and at all relevant times has been, a New Jersey corporation with its principal office located in New Brunswick, New Jersey. 4. Petitioner JJCCI is, and at all relevant times has been, a New Jersey corporation with its principal office located in New Brunswick, New Jersey. 5. Upon information and belief, respondent Oral Cancer Prevention International, Inc. ("OCPI") is, and at all relevant times has been, a Delaware corporation with its principal office located in Suffern, New York. JURISDICTION AND VENUE 6. This Court has jurisdiction over this proceeding pursuant to CPLR 301 in that OCPI, upon information and belief, is domiciled in New York and/or does business in New York. 7. Venue is proper in this Court pursuant to CPLR 7502(a)(i) because the Arbitration was held in New York County. THE AGREEMENT 8. On February 5, 2010, OraPharma and OCPI entered into a written contract titled the "Sales Services Agreement" (the "Agreement"), a copy of which is annexed hereto as Exhibit B. 9. The purpose of the Agreement was for OraPharma to act as "exclusive marketer" of OCPI's OralCDx BrushTest oral cancer screening kit and the related laboratory procedure performed on tissue samples acquired using the kit. (Ex. B. at 1.01, 2.01.) 2 6339227v.2
(Ex. B at 14.02.) 10. Section 14.02 of the Agreement states, in relevant part: Any controversy or claim arising out of or relating to this Agreement shall be resolved by arbitration before a panel of three arbitrators in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA")... Any court with jurisdiction shall enforce this clause and enter judgment on any award... The arbitration shall be held in New York and the arbitrator shall apply the substantive law of New York, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. BACKGROUND 11. On July 6, 2011, OCPI filed a complaint against J&J and JJCCI in the United States District Court for the District of New Jersey (Case No. 3:11-cv-03878-PGS-LHG, hereinafter the "New Jersey Action") asserting claims for fraud, tortious interference with contract, and civil conspiracy, based on the allegation that J&J and JJCCI caused OraPharma to breach the Agreement. 12, On July 25, 2011, J&J and JJCCI moved to stay the New Jersey Action and compel arbitration before the AAA as required by the Agreement. On December 7, 2011, the District Court for the District of New Jersey granted that motion and ordered that the New Jersey Action be administratively terminated without prejudice. THE ARBITRATION 13. On June 19, 2012, OCPI submitted an Arbitration Demand to the AAA, alleging breach of contract by OraPharma and JJCCI for failure to exercise diligent efforts under the Agreement, alleging tortious interference with contract and tortious interference with 6339227v.2
prospective business relations against J&J and JJCCI, and claiming to have suffered $91 million in damages. 14. On July 16, 2012, J&J and JJCCI submitted their response to OCPI's Arbitration Demand and a counterclaim for breach of the Agreement's arbitration provision. 15. On July 16, 2012, OraPharma submitted its response to OCPI's Arbitration Demand and a counterclaim for unpaid invoices under the Agreement. 16. With the consent of the parties and pursuant to the Agreement and the AAA's Commercial Arbitration Rules, the AAA appointed a panel of three arbitrators: Judge E. Leo Milonas (who served as chair of the panel), Roy L. Reardon, Esq., and K.W. Michael Chambers, Esq. (together, the "Panel"). 17. With the oversight of the Panel, the parties exchanged documents, conducted depositions, and exchanged expert reports over the course of approximately five months. 18. The Panel duly conducted a nine-day hearing at the offices of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New York, commencing on February 18, 2013 and concluding on February 28, 2013. During the hearing, the parties, through their respective attorneys, appeared before the Panel and submitted their proofs, which included live sworn testimony and cross-examination of witnesses and extensive documentary evidence. El 6339227 v.2
THE FINAL AWARD 19. The Panel studied the facts, circumstances, and proofs concerning the controversies submitted to it, and, having fully considered all of the evidence and arguments submitted by the parties, arrived unanimously at a Final Award on June 3, 2013 and delivered it to the parties on June 4, 2013. A copy of the Final Award is annexed hereto as Exhibit A. 20. In the Final Award, the Panel ordered as follows: a. That OCPI's claims against OraPharma and JJCCI for breach of contract be dismissed; b. That OCPI's claims against J&J and JJCCI for tortious interference with contract be dismissed; c. That OCPI's claims against J&J and JJCCI for tortious interference with prospective business relations be dismissed; d. That OraPharma' s counterclaim against OCPI for unpaid invoices under the Agreement be dismissed; e. That J&J's and JJCCI's counterclaim against OCPI for breach of the Agreement's arbitration provision be dismissed; f. That all claims for costs and attorney's fees be denied; and g. That the Final Award be in full settlement of all claims and counterclaims submitted in the arbitration and that to the extent that any such claim or counterclaim is not specifically mentioned in the Final Award, it be denied. 21. Less than one year has expired since the date of the delivery of the Final Award by the Panel to the parties. 22. The Final Award has not been vacated or modified. No application has been made by either party for vacation or modification of the Final Award and no grounds exist therefor, 5 6339227v.2
WHEREFORE, Petitioners OraPharma, J&J, and JJCCI request that an Order of this Court be issued confirming the Final Award and entering judgment thereon. Dated: New York, New York July 3l,2013 By: 4pk John. Winter PATT RSON BELKNAP WEBB & TYLER LLP 1133 Avenue of the Americas New York, New York 10036 (212) 336-2000 Attorneys for Petitioners Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. _t T. Barfy Kingham Deiphine W. Knight Brown CURTIS, MALLET-PREVOST, COLT & MOSLE LLP 101 Park Avenue New York, New York 10178 (212) 696-6000 Attorneys for Petitioner OraPharma, Inc. o339227.2
STATE OF NEW YORK ) ) ss: COUNTY OF NEW YORK ) VERIFICATION PURSUANT TO CPLR 3020 JOHN D. WINTER, being duly sworn, deposes and says: I have read the foregoing petition and know the contents thereof. Except as to the matters stated to be alleged on information and belief, the petition is true to my knowledge. As to matters stated to be alleged on information and belief, I believe the petition to be true. 2, This Verification is not made by Petitioners because, pursuant to CPLR 3020(d)(3), Petitioners are foreign corporations and all of the material allegations of the pleading are within my personal knowledge. (Ji JOHN D. WINTER Sworn to before me his day of,2013 i,1t4' Notary Public WILLIAM GASKE Notary Public, State of New York No..01GA4942326 Qualified in Westchester County Certificate Filed in New York County Commission Expires January 5, 20 1L5' 7 63 39227v.2