Facts

Bioquest brought this action against VivoRx for breach of a license assignment and license agreement entered by Bioquest’s general manager, Aberlyn Capital Management L.P. and VivoRx’s predecessor in interest, MedClone Inc. The agreement was dated March 2, 1993 and a license assignment and assumption agreement between Aberlyn, MedClone, and VivoRx was dated July 1, 1997.

Under the assumption agreement, VivoRx agreed to “assume all of the obligations of MedClone under the license agreement as though VivoRx were the original licensee of the license agreement.” Pursuant to the agreements, VivoRx agreed to make monthly royalty payments from July 1997 through July 2001.

From 1997 through August 1999, VivoRx made some payments to Aberlyn as required by the agreements. Aberlyn, as general manager for Bioquest, forwarded these payments to Bioquest. During the spring and summer of 1999, Aberlyn and Bioquest terminated their relationship. As part of that termination, Aberlyn confirmed that Bioquest was entitled to all payments due to Aberlyn under the agreements and assigned any rights it had under those agreements to Bioquest. In August of 1999, Aberlyn notified VivoRx that all future payments should be directed to Bioquest. After which, VivoRx, through its parent corporation American BioScience Inc. (ABI), now merged into Abraxis BioScience Inc. (Abraxis), began communicating with Bioquest through Tom Snyder.

VivoRx failed to make its scheduled payments to Bioquest beginning in September 1999, and continued to miss each payment through July 1, 2001. From September 1999 through the end of 2004, shortly before Bioquest initiated this action, Bioquest and ABI had regular communications about VivoRx’s payment obligations under the contracts at issue. On Feb. 10, 2005, Bioquest initiated this action by filing its complaint.

VivoRx defended the action by arguing that the license agreement and assumption agreement had been abandoned.

Bioquest has filed a motion seeking to hold Abraxis BioScience Inc. and Dr. Patrick Soon-Shiong liable as the alter egos of VivoRx.