WT Representative LLC v. Philips Holdings USA Inc., C.A. No. 2024-0170 PRW (Del. Ch. Aug. 16, 2024)
A plaintiff who claims a breach of a commercially reasonable efforts provision that is externally facing is required to make allegations comparing the defendant’s acts or omissions to those of one or more similarly situated companies. In this decision dealing with a motion to dismiss, the plaintiff alleged that the defendant failed to use commercially reasonable efforts to achieve an FDA Achievement Milestone as required in the agreement. More specifically, the provision at issue required that the defendant use reasonable, good-faith efforts and resources like those normally used by a medical device company of a similar size and with similar revenues. The Court dismissed this claim, however, as the complaint did not include any reference to similarly situated companies or products.
