What changed in this filing

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Item 3. Legal Proceedings

2021-03-25 compared with 2020-02-25 · 48 added, 33 removed, 14 unchanged (85% of the section changed)

4 unchanged sentences

The amended complaint alleges, among other things, that Daewoong stole Medytox’s botulinum toxin bacterial strain, or the BTX strain, that Daewoong misappropriated certain trade secrets of Medytox, including the process used to manufacture Jeuveau ® (which Medytox claims is similar to its biopharmaceutical drug, Meditoxin) using the BTX strain, and that Daewoong thereby interfered with Medytox’s plan to license Meditoxin to us.

Medytox claims that as a result of Daewoong’s conduct, we entered into the Daewoong Agreement instead of an agreement with Medytox to license Meditoxin.

Daewoong filed a motion to dismiss or stay for forum non conveniens, claiming that the place where the complaint has been filed, in the Superior Court of the State of California, is not the proper place for the trial of the claims in the complaint because, among other reasons, the underlying facts that gave rise to the complaint occurred in South Korea.

Daewoong’s motion to dismiss was granted by the Superior Court of the State of California on October 12, 2017.

As a result, the action filed with the Superior Court of the State of California is stayed pending resolution of the proceedings in South Korea.

In October 2017, Medytox initiated a civil lawsuit against Daewoong and its parent company, Daewoong Co.

Ltd., in the Seoul Central District Court in Seoul, South Korea, related to the same subject matter in the Medytox Litigation and is seeking, among other things, money damages, injunctive relief and destruction of related documents and products.

We are not a party to the litigation in the Seoul Central District Court.

On April 27, 2018, pursuant to a motion to dismiss brought by Daewoong, the Superior Court of the State of California dismissed Medytox’s suit against Daewoong, without prejudice, on the basis that Medytox had brought a substantially similar proceeding against Daewoong in South Korea.

The proceedings against us remain stayed in the Superior Court of the State of California pending resolution of the proceedings between Medytox and Daewoong in South Korea.

With specific regard to us, Medytox alleges that (i) we have violated California Uniform Trade Secrets Act, Cal.

Code § 3426 because Daewoong’s alleged knowledge of the misappropriation of certain trade secrets of Medytox is imputed to us as a result of our relationship with Daewoong, (ii) we have stolen the BTX strain through our possession of and refusal to return the BTX strain, (iii) we have engaged in unlawful, unfair and fraudulent business acts and practices in violation of California Bus.

Code § 17200, including conversion of the BTX strain and misrepresentations to the public regarding the source of the botulinum toxin bacterial strain used to manufacture Jeuveau ® , and (iv) the Daewoong Agreement is invalid and in violation of Medytox’s rights.

Medytox seeks, among other things, (i) actual, consequential and punitive damages, (ii) a reasonable royalty, as appropriate, (iii) a declaration that the Daewoong Agreement is void and unenforceable and that Medytox is entitled to disgorgement of all property wrongfully and unjustly retained or acquired by the defendants, including unlawfully gained profits, (iv) injunctive relief prohibiting us from using the license under the Daewoong Agreement and distributing Jeuveau ® , and (v) attorneys’ fees and costs.

We are vigorously defending Medytox’s claims against us.

Given the early stage in the Medytox Litigation, we are unable to predict the likelihood of success of Medytox’s claims against us or Daewoong or to quantify any risk of loss.

The litigation could go on for an extended period of time and require us to dedicate significant financial and management resources to those efforts.

While we are entitled to indemnity under the Daewoong Agreement, the indemnity may not be sufficient.

An adverse ruling against either us or one of the other defendants could materially and adversely affect our business, consolidated

financial position, results of operations, or cash flows and could also result in reputational harm.

Even if we are successful, the litigation may result in delays in our product development, reputational damage or other collateral consequences.

Medytox claimed that as a result of Daewoong’s conduct, we entered into the Daewoong Agreement instead of an agreement with Medytox to license Meditoxin.

With specific regard to us, Medytox alleged that (i) we violated California Uniform Trade Secrets Act, Cal.

Code § 3426 because Daewoong’s alleged knowledge of the misappropriation of certain trade secrets of Medytox is imputed to us as a result of our relationship with Daewoong, (ii) we stole the BTX strain through our possession of and refusal to return the BTX strain, (iii) we engaged in unlawful, unfair and fraudulent business acts and practices in violation of California Bus.

Medytox sought, among other things, (i) actual, consequential and punitive damages, (ii) a reasonable royalty, as appropriate, (iii) a declaration that the Daewoong Agreement is void and unenforceable and that Medytox is entitled to disgorgement of all property wrongfully and unjustly retained or acquired by the defendants, including unlawfully gained profits, (iv) injunctive relief prohibiting us from using the license under the Daewoong Agreement and distributing Jeuveau ® , and (v) attorneys’ fees and costs.

Effective February 18, 2021, we, Medytox and Allergan entered into the U.S.

Settlement Agreement pursuant to which we and Medytox agreed to dismiss the Medytox Litigation.

On February 23, 2021, the Medytox Litigation was dismissed.

ITC Complaint

4 unchanged sentences

337-TA-1145, or the ITC Action.

The ITC complaint calls for an investigation by the ITC Office of Unfair Import Investigations, or OUII, under Section 337 of the Tariff Act of 1930.

The ITC complaint seeks (i) an investigation pursuant to Section 337 of the Tariff Act of 1930, (ii) a hearing with the ITC on permanent relief, (iii) issuance of a limited exclusion order forbidding entry of Jeuveau ® into the United States, (iv) a cease and desist order prohibiting Daewoong and us from engaging in the importations, sale for importation, marketing, distribution, offering for sale, the sale after the importation of, or otherwise transferring Jeuveau ® within the United States, (v) a bond issued during the presidential review period, (vi) the return of Medytox’s trade secrets and other confidential information including the alleged stolen BTX Strain, and (vii) exclusion and cease and desist orders.

In January 2020, the three sets of parties to the ITC action, (i) the Complainants - Allergan and Medytox, (ii) the Respondents - us and Daewoong and (iii) the OUII, each submitted pre-hearing briefs to the Administrative Law Judge assigned to the ITC Action setting forth each parties positions on the substantive issues and preliminary conclusions prior to the evidentiary hearing.

From February 4-7, 2020, the Administrative Law Judge held an evidentiary hearing on the ITC Action.

An initial determination by the Administrative Law Judge is due by June 5, 2020 and the target date for the final determination by the ITC is October 6, 2020.

We intend to defend the claims contained in the ITC complaint and the related ITC Action vigorously.

Given the current stage of the ITC Action, we are unable to predict the likelihood of success of Medytox’s and Allergan’s claims against us or Daewoong or to quantify the risk of the imposition of an exclusion order or cease and desist order.

The ITC Action could require us to dedicate significant financial and management resources to those efforts.

While we are entitled to indemnity under the Daewoong Agreement, the indemnity may not be sufficient.

An adverse ruling by the ITC against either us or Daewoong could result in the imposition of an exclusion order which would bar imports of Jeuveau ® within the United States and a cease and desist order which would bar sales and marketing of Jeuveau ® within the United States, either of which would materially adversely affect the Company’s ability to carry out its business and which would have a material adverse effect on the Company’s business, financial position, results of operations, or cash flows and could also result in reputational harm.

Even if we are successful, the ITC Action may result in reputational damage or other collateral consequences.

The ITC complaint called for an investigation by the ITC Office of Unfair Import Investigations, or OUII, under Section 337 of the Tariff Act of 1930.

The ITC complaint sought (i) an investigation pursuant to Section 337 of the Tariff Act of 1930, (ii) a hearing with the ITC on permanent relief, (iii) issuance of a limited exclusion order forbidding entry of Jeuveau ® into the United States, (iv) a cease and desist order prohibiting Daewoong and us from engaging in the importations, sale for importation, marketing, distribution, offering for sale, the sale after the importation of, or otherwise transferring Jeuveau ® within the United States, (v) a bond issued during the presidential review period, (vi) the return of Medytox’s trade secrets and other confidential information including the alleged stolen BTX Strain, and (vii) exclusion and cease and desist orders.

On December 16, 2020, the ITC issued its final determination in the ITC Action.

The final determination partially affirmed the Administrative Law Judge’s (“ALJ’s”) ruling in the initial determination that found a violation of Section 337 of the Tariff Act of 1930 had occurred by reason of a misappropriation of certain manufacturing process trade secrets.

The ITC also reversed the ALJ’s finding that a trade secret exists with respect to a bacterial strain.

As a result, the ITC issued (1) a limited exclusion order prohibiting the importation of Jeuveau ® into the United States for a period of 21 months and (2) a cease and desist order preventing the Company from, among other things, selling, marketing, or promoting such imported Jeuveau ® in the United States for a period of 21 months (“Restricted Period”).

We refer to the limited exclusion order and the cease and desist order collectively as, the remedial orders.

The Final Determination was subject to a 60-day presidential review period before taking effect.

During the presidential review period, the Company was permitted to continue importation and sales of Jeuveau ® subject to payment of a bond of $441.00 for every vial distributed in the United States.

The Presidential review period ended on February 16, 2021.

Prior to the expiration of the presidential review period, we filed an emergency motion with the United States Court of Appeals for the Federal Circuit, or the Federal Circuit which issued an emergency stay which suspended the execution of the remedial order pending appeal of the ITC’s decision, briefing for which was to be due by March 5, 2021.

Effective February 18, 2021, we entered into a Settlement and License Agreement with Medytox and Allergan, which we refer to as the U.S.

Settlement Agreement, pursuant to which we, Allergan and Medytox agreed to rescind the remedial orders, dismiss the ITC Action and dismiss any appeal by Evolus of the ITC Action in the Federal Circuit.

As of the date of this Annual Report on Form 10-K, the ITC Action has not yet been dismissed.

For additional information about the U.S.

Settlement Agreement and the Medytox/Allergan Settlement Agreements, see Item 1 “Business—Final Ruling by the U.S.

International Trade Commission and the Subsequent Settlement Agreements .

Securities Class Action Lawsuit

On October 16 and 28, 2020, two putative securities class action complaints were filed in the U.S.

District Court for the Southern District of New York by putative Evolus shareholders Armin Malakouti and Clinton Cox, respectively, naming us and certain of our officers as defendants.

The complaints assert violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder, claiming that the defendants made false and materially misleading statements and failed to disclose material adverse facts related to the Company’s acquisition of the right to sell Jeuveau ® , the ITC Action and risks related to the ITC Action.

The complaints assert a putative class period of February 1, 2019 to July 6, 2020.

The court consolidated the actions on November 13, 2020, under the caption In re Evolus Inc.

Securities Litigation, No.

1:20-cv-08647 (PGG).

Four putative shareholders (or groups of shareholders) have since moved to be appointed lead plaintiff.

Under the court’s November 13, 2020 order, defendants need not move, answer, or otherwise respond to the complaints until 60 days after a lead plaintiff is appointed and files a consolidated, amended complaint.

Shareholder Derivative Lawsuit

On November 27, 2020 and December 2, 2020, two putative Evolus shareholders filed substantially similar shareholder derivative actions in the U.S.

District Court for the Southern District of New York against certain of our officers and directors as defendants.

The complaints allege substantially similar facts as those in the Securities Class Action and assert claims for, among other things, breach of fiduciary duty, waste of corporate assets, unjust enrichment, violations of Section 14(a) of the Exchange Act, and for contribution under Sections 10(b) and 21(D) of the Exchange Act.

On February 5, 2021, the court consolidated the actions under the caption In re Evolus, Inc.

Derivative Litigation, No.

1:20-cv-09986-PGG, and adjourned defendants’ time to move, answer, or otherwise respond to the complaints.

On March 8, 2021, the parties filed a stipulation and proposed order to stay the consolidated derivative suit pending the court’s decision on defendants’ anticipated motion to dismiss the Securities Class Action.

It is possible that additional suits will be filed, or additional allegations will be made by stockholders, with respect to these same or similar or other matters and also naming us and/or our officers and directors as defendants.

We believe that the complaints are without merit and intend to vigorously defend against them.

However, the outcome of the legal proceedings is uncertain at this point.

Based on information available to us at present, we cannot reasonably estimate a range of loss and accordingly have not accrued any liability associated with this action.

Other Matters

In January 2017, Medytox initiated a criminal investigation into the foregoing matter in South Korea, which appears to target one or more of the above defendants, but does not appear to target us.

In addition to the Medytox Litigation and the ITC Complaint, from time to time, we may be subject to other legal proceedings and claims in the ordinary course of business.

In addition to the legal proceedings set forth above, from time to time, we may be subject to other legal proceedings and claims in the ordinary course of business.

Mine Safety Disclosures.

1 unchanged sentence

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 3. Legal Proceedings