Here is some more from YMB:
RANTES
RANTES37 minutes ago
More from the RESPONSE:
The Maryland long-arm statute permits the exercise of jurisdiction over “a person, who
directly or by an agent . . . transacts any business or performs any character of work or service in
the State.” Md. Cts & Jud. P. § 6-103(b) (emphasis added). When, as here, personal jurisdiction is
based on a parent’s relationship with its subsidiary, Maryland courts employ an agency test to
determine whether the two entities should be treated as one for jurisdictional purposes. Mylan
Labs., Inc., 2 F.3d at 61. The Court must determine “whether significant decisions of the subsidiary
must be approved by the parent,” id., as well as whether the defendants maintain corporate formalities and whether the parent “knew, or should have known, that its conduct would have some impact in Maryland,” id. at 61–62. See also Finance Co. of Am. v. BankAmerica Corp., 493 F. Supp.
895, 903 (D. Md. 1980). The Amended Complaint alleges that NSF exercises substantial control
Case 8:21-cv-02533-PJM Document 33 Filed 12/07/21 Page 6 of 12
7
over Amarex such that it is subject to this Court’s jurisdiction. Id. ¶ 17. Indeed, the Complaint
alleges that in the two years since NSF acquired Amarex, NSF has made nearly all of Amarex’s
substantial business decisions, particularly those concerning Amarex’s relationship with CytoDyn.
Id. ¶ 18. For example, when CytoDyn attempted to investigate irregularities under the MSA, Tom
Chestnut, NSF’s COO, initially spoke on Amarex’s behalf. Id. ¶ 46. As discussions continued, Mr.
Chestnut introduced CytoDyn’s COO not to an Amarex officer or employee, but rather to Martin
Lush, an NSF Vice President. Id. ¶ 47. Mr. Lush even asked CytoDyn’s COO not to disclose their
conversation to anyone at Amarex. Id. ¶ 47. Shortly thereafter, when CytoDyn sought—via an
email sent only to Amarex personnel—to exercise its contractual right to an audit, it was again Mr.
Lush who responded to speak for Amarex and reject the request. Id. ¶ 50. And, as the Amended
Complaint also alleges, Amarex has consistently refused to return CytoDyn’s data at NSF’s direction. Id. ¶ 43. These allegations, which must be accepted as true at this stage, show that NSF acts
as the day-to-day decisionmaker for Amarex, and exercises such extensive control over Amarex
that, for purposes of this dispute, the entities are indistinguishable."
RANTES
RANTES37 minutes ago
More from the RESPONSE:
The Maryland long-arm statute permits the exercise of jurisdiction over “a person, who
directly or by an agent . . . transacts any business or performs any character of work or service in
the State.” Md. Cts & Jud. P. § 6-103(b) (emphasis added). When, as here, personal jurisdiction is
based on a parent’s relationship with its subsidiary, Maryland courts employ an agency test to
determine whether the two entities should be treated as one for jurisdictional purposes. Mylan
Labs., Inc., 2 F.3d at 61. The Court must determine “whether significant decisions of the subsidiary
must be approved by the parent,” id., as well as whether the defendants maintain corporate formalities and whether the parent “knew, or should have known, that its conduct would have some impact in Maryland,” id. at 61–62. See also Finance Co. of Am. v. BankAmerica Corp., 493 F. Supp.
895, 903 (D. Md. 1980). The Amended Complaint alleges that NSF exercises substantial control
Case 8:21-cv-02533-PJM Document 33 Filed 12/07/21 Page 6 of 12
7
over Amarex such that it is subject to this Court’s jurisdiction. Id. ¶ 17. Indeed, the Complaint
alleges that in the two years since NSF acquired Amarex, NSF has made nearly all of Amarex’s
substantial business decisions, particularly those concerning Amarex’s relationship with CytoDyn.
Id. ¶ 18. For example, when CytoDyn attempted to investigate irregularities under the MSA, Tom
Chestnut, NSF’s COO, initially spoke on Amarex’s behalf. Id. ¶ 46. As discussions continued, Mr.
Chestnut introduced CytoDyn’s COO not to an Amarex officer or employee, but rather to Martin
Lush, an NSF Vice President. Id. ¶ 47. Mr. Lush even asked CytoDyn’s COO not to disclose their
conversation to anyone at Amarex. Id. ¶ 47. Shortly thereafter, when CytoDyn sought—via an
email sent only to Amarex personnel—to exercise its contractual right to an audit, it was again Mr.
Lush who responded to speak for Amarex and reject the request. Id. ¶ 50. And, as the Amended
Complaint also alleges, Amarex has consistently refused to return CytoDyn’s data at NSF’s direction. Id. ¶ 43. These allegations, which must be accepted as true at this stage, show that NSF acts
as the day-to-day decisionmaker for Amarex, and exercises such extensive control over Amarex
that, for purposes of this dispute, the entities are indistinguishable."
9
