It is common for a litigant to lose some motions and win others. A question appellate lawyers often hear from lawyers representing clients who have won some and lost some, but who ultimately prevailed, is, "Do I need to cross-appeal?" The U.S. Court of Appeals for the Third Circuit's recent decision in Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223 (3d Cir. Jan. 23, 2013), sets the stage for a refresher course on the rules governing cross-appeals (and a few other appellate tidbits, too).
The Allegations
Ethypharm is a French manufacturer of pharmaceuticals, including a cholesterol-reducing drug known as a fenofibrate. Rather than undertake the effort required to enter the U.S. pharmaceutical market directly, Ethypharm entered into a license and distribution agreement with an American company, Reliant Pharmaceuticals. Reliant, in turn, obtained the requisite approval from the Food and Drug Administration to market the fenofibrate under the name Antara.
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