United States District Court, D. Massachusetts
FERRING PHARMACEUTICALS, INC., Plaintiff-Counterclaim Defendant,
BRAINTREE LABORATORIES, INC., Defendant-Counterclaim Plaintiff.
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
case concerns two pharmaceutical companies that have
competing products used for bowel preparation before
colonoscopies. Plaintiff/counterclaim-defendant Ferring
Pharmaceuticals, Inc. (“Ferring”) claims that
Defendant/counterclaim-plaintiff Braintree Laboratories, Inc.
(“Braintree”) engaged in false advertising in
violation of the Lanham Act and unfair trade practices in
violation of the Massachusetts Consumer Protection Act,
M.G.L. ch. 93A (“Chapter 93A”). Braintree
counterclaims that Ferring has, itself, engaged in false
advertising and unfair trade practices. Braintree's
motion in limine to strike Ferring's demand for
a jury trial is currently pending before the Court.
Motion to Strike Jury Trial
have the right to a jury trial when a statute or the Seventh
Amendment so requires. Fed.R.Civ.P. 38(a). The First Circuit
Court of Appeals (“First Circuit”) has found that
the Lanham Act does not create such a right if a plaintiff
seeks “the remedy of an accounting of defendant's
profits.” Visible Sys. Corp. v. Unisys Corp.,
551 F.3d 65, 78 (1st Cir. 2008). Nor does Chapter 93A create
a right to a jury trial. Wallace Motor Sales, Inc. v. Am.
Motors Sales Corp., 780 F.2d 1049, 1066 (1st Cir. 1985).
is a two-part test for determining whether parties have a
right to a jury trial under the Seventh Amendment:
(1) compare the statutory action to 18th-century actions
brought in the courts of England prior to the merger of the
courts of law and equity; and (2) examine the remedy sought
and determine whether it is legal or equitable in nature.
Frappier v. Countrywide Home Loans, Inc., 750 F.3d
91, 98 (1st Cir.), cert. denied, 135 S.Ct. 179
(2014) (internal quotation marks omitted). The second prong
of the test carries more weight than the first. Id.
When a case involves both legal and equitable claims, the
jury trial must proceed first unless there are exceptional
cirucmstances because “the right to [a] jury trial is a
constitutional one” and there is no similar right to a
bench trial. Beacon Theatres, Inc. v. Westover, 359
U.S. 500, 510-11 (1959).
may also be entitled to a jury trial if an equitable remedy
is of a legal nature. See Dairy Queen, Inc. v. Wood,
369 U.S. 469, 477-78 (1962). For instance, an accounting of
profits can act as a proxy for a legal claim in some
circumstances. SharkNinja Operating LLC v. Dyson
Inc., No. 14-13720-ADB, 2016 WL 6134101, at *1-2 (D.
Mass. Oct. 19, 2016). The First Circuit has yet to address
whether an accounting of profits that acts as a proxy for
legal damages creates a right to a jury trial but it has
observed that the “proxy rationale” may be the
“strongest argument” for such a right.
Visible, 551 F.3d at 80, n.11. Using methodology
that this Court finds convincing, other courts have found a
right to a jury trial by applying the proxy rationale if 1)
the case involves similar products, 2) there is no adequate
remedy at law and 3) the products compete directly. See,
e.g., SharkNinja, 2016 WL 6134101, at *2.
moves to strike Ferring's demand for a jury trial on the
grounds that, because Ferring seeks only disgorgement of
Braintree's profits, its claims are equitable. Ferring
responds that it is entitled to a jury trial with respect to
its defenses to Braintree's counterclaims which the
parties agree are legal in nature. Ferring further contends
that its claim for an accounting is a proxy for a legal
is correct in its assertion that it is entitled to a jury
trial on its defenses to Braintree's counterclaims for
lost profits. Fed.R.Civ.P. 38(a); Beacon, 359 U.S.
other hand, Ferring's contention that its accounting
theory of damages is a proxy for legal damages presents a
closer question. The first two SharkNinja factors
weigh in favor of a finding that that Ferring's claim is
a proxy for legal damages. The competing treatments used to
prepare for colonoscopies are very similar.
SharkNinja, 2016 WL 6134101, at *2. There is also no
alternative legal remedy available because Braintree's
purported false advertising began as soon as Ferring's
treatment entered the market, making it impossible for
Ferring to measure its alleged losses by decreased sales.
with respect to the third SharkNinja factor, it is
unclear if the direct competition requirement is met. Ferring
contends that the two products perform the same function,
involve the same volume of treatment and the same doctors
prescribe both of them. Ferring further alleges that
Braintree's advertising directly targeted its product.
There were, however, other colonoscopy preparation drugs ...