Yesterday, franchise customers of J&J Lifescan received copies of a letter to customers regarding J&J's illegal tie-in policy designed to frustrate the sale of DECN GenUltimate in chain pharmacies, department stores, HMOs and PBMs. Since November 2013, the date of the landmark Federal Circuit ruling in favor of DECN, J&J has employed an illegal tie-in policy whereby while they could not stop the commercial sale of DECN products, they could frustrate these sales greatly by denying buyers of DECN products rebates on J&J products. Rebates typically amount to 75% of the profits a chain pharmacy makes on each J&J sale. The letter posted below has a bright red J&J logo at top, which this message box did not pick up. Let the Berman bashing begin again. Sorry for the intrusion.
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From: "Contract Services [LFSUS]" <CService@LFSUS.JNJ.com>
Date: June 19, 2017 at 11:56:48 AM EDT
To:
Subject: LifeScan Inc. Confidential Waiver Contract Provision
CONFIDENTIAL WAIVER OF CONTRACT PROVISION
March 28, 2017
Dear Customer:
If you are party to an agreement with LifeScan, Inc. (“LifeScan”) and that agreement contains a provision entitled, “OneTouch® Ultra® Compatible Products,” this correspondence will act as notice of LifeScan’s unilateral and irrevocable waiver of its right to enforce this provision for a five-year period.
The “OneTouch® Ultra® Compatible Products” provision generally states:
Customer agrees that it will not sell any blood glucose test strip intended for use, or otherwise compatible, with Company’s OneTouch® Brand blood glucose meters except products manufactured by Company.[1]
This provision may be found in the following kinds of agreements: Mail Order, Marketing Development Funds, Retail, Retail - Select Plan Option, Distributor, Durable Medical Equipment, Wholesaler, Fee for Service (Medi-Cal), Institutional Pricing, Medicare/Medicaid, Net Pricing, and Net Pricing Rebate. You may be a party to more than one of these agreements. Nevertheless, regardless of the type of contract or the number of contracts to which you may be a party with LifeScan, LifeScan waives its right to enforce the provision in any contract in which it appears in accordance with the conditions above.
Pursuant to the Confidentiality provision in your agreement with LifeScan, the contents of this letter are confidential, and shall not be disclosed to any person or entity except as provided for in the agreement.
Please do not hesitate to contact Contract Services by email at cservice@lfsus.jnj.com or by phone at 888-600-7226 with questions or concerns. We respectfully request that you acknowledge receipt of this notice and return a signed copy to LifeScan, Inc., Attn: Contract Services, 821 Fox Lane, San Jose, CA 95131.
That being said, failing to return an executed copy of this notice will in no way affect LifeScan’s waiver of the compatible products provision or your ability to enforce this waiver.
LifeScan
Customer
By:________________________________
By:_______________________________
Name: Marjorie Neilson______________
Name:_____________________________
Title: Sr. Offer Development Manager__
Title:_______________________________
Date:_______________________________
Date:_______________________________
[1] Provisions in certain agreements may use slightly different language. Nevertheless, all provisions entitled “OneTouch® Ultra® Compatible Products” will be treated in the manner specified in this waiver.
955568v.1
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From: "Contract Services [LFSUS]" <CService@LFSUS.JNJ.com>
Date: June 19, 2017 at 11:56:48 AM EDT
To:
Subject: LifeScan Inc. Confidential Waiver Contract Provision
CONFIDENTIAL WAIVER OF CONTRACT PROVISION
March 28, 2017
Dear Customer:
If you are party to an agreement with LifeScan, Inc. (“LifeScan”) and that agreement contains a provision entitled, “OneTouch® Ultra® Compatible Products,” this correspondence will act as notice of LifeScan’s unilateral and irrevocable waiver of its right to enforce this provision for a five-year period.
The “OneTouch® Ultra® Compatible Products” provision generally states:
Customer agrees that it will not sell any blood glucose test strip intended for use, or otherwise compatible, with Company’s OneTouch® Brand blood glucose meters except products manufactured by Company.[1]
This provision may be found in the following kinds of agreements: Mail Order, Marketing Development Funds, Retail, Retail - Select Plan Option, Distributor, Durable Medical Equipment, Wholesaler, Fee for Service (Medi-Cal), Institutional Pricing, Medicare/Medicaid, Net Pricing, and Net Pricing Rebate. You may be a party to more than one of these agreements. Nevertheless, regardless of the type of contract or the number of contracts to which you may be a party with LifeScan, LifeScan waives its right to enforce the provision in any contract in which it appears in accordance with the conditions above.
Pursuant to the Confidentiality provision in your agreement with LifeScan, the contents of this letter are confidential, and shall not be disclosed to any person or entity except as provided for in the agreement.
Please do not hesitate to contact Contract Services by email at cservice@lfsus.jnj.com or by phone at 888-600-7226 with questions or concerns. We respectfully request that you acknowledge receipt of this notice and return a signed copy to LifeScan, Inc., Attn: Contract Services, 821 Fox Lane, San Jose, CA 95131.
That being said, failing to return an executed copy of this notice will in no way affect LifeScan’s waiver of the compatible products provision or your ability to enforce this waiver.
LifeScan
Customer
By:________________________________
By:_______________________________
Name: Marjorie Neilson______________
Name:_____________________________
Title: Sr. Offer Development Manager__
Title:_______________________________
Date:_______________________________
Date:_______________________________
[1] Provisions in certain agreements may use slightly different language. Nevertheless, all provisions entitled “OneTouch® Ultra® Compatible Products” will be treated in the manner specified in this waiver.
955568v.1
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