Supplemental Memorandum of Law in Support of Plaintiffs Nutramax Laboratories, Inc.'s and Nutramax Manufacturing, Inc.'s Application for Recognition and Enforcement in Part and Vacatur in Part of a Foreign Arbitration Award and in Opposition to Bioiberica's Counter-Petition to Confirm and Enforce a Foreign Arbitration Award
Pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, June 10, 1958), 21 U.S.T. 2517, T.I.A.S. No. 6997, 330 U.N.T.S. 38 ("Convention") and Chapter 2 of the Federal Arbitration Act ("FAA"), Plaintiffs Nutramax Laboratories, Inc. ("Nutramax Labs") and Nutramax Manufacturing, Inc. ("Nutramax Manufacturing") (collectively, "Nutramax") respectfully submit this supplemental memorandum of law in support of their application to recognize and enforce in part and vacate in part a final arbitration award issued by a three-member panel of the International Court of Arbitration of the International Chamber of Commerce ("ICC Panel") on December 10, 2021 ("ICC Award"). Given the overlap of issues involved with Bioiberica's Cross-Petition to fully confirm and enforce the same award at issue, this memorandum will also serve as Nutramax's written opposition to the Bioiberica Petition as contemplated in the Court's Consent Scheduling Order.
Based upon the foregoing, the Court should enforce through judgment the findings of the Panel that the parties do not dispute such that a judgment would be entered in favor of Nutramax for $5,000 in nominal damages on its claim for breach of contract against Bioiberica for its infringement of Nutramax's trade dress in violation of §2.10.2 of the parties' Cosequin Agreement.
Further, in connection with the hearing seeking preliminary injunctive relief, the Court should include in its judgment the award of costs and fees to Bioiberica of 85,306.67 plus interest through the day Nutramax offered payment to Bioiberica. Finally, the Court should refuse to include any portion of the ICC Award which provided Bioiberica any costs and fees for the Merits Hearing as Nutramax was the prevailing party as a matter of law and nothing in the clear language of the contract or applicable law would permit an award of cost and fees to the non-prevailing party.