Morrison Cohen Wins Summary Judgment for Pharmaceutical Client

On March 29, 2023, the Superior Court for the Commonwealth of Massachusetts, Suffolk County, issued a decision granting summary judgment in favor of Brammer Bio MA LLC (“Brammer”) on its claim against Biogen MA Inc. for a declaration that Brammer has the right to exercise its options to extend its sublease of a pharmaceutical manufacturing facility in Cambridge, Massachusetts from Biogen. Brammer, which is owned by Thermo Fisher Scientific, is a contract development and manufacturing organization for viral vector manufacturing for gene therapies. Brammer commenced the suit to protect the 10-year lease extension option in its sublease with Biogen. The dispute concerns rights valued at nearly one billion dollars and the potential disruption of the production of life saving drugs and therapeutics in the viral vector sector that Brammer is manufacturing for consumers at the facility.

Partners Y. David Scharf and Alvin Lin and Associate Mahnoor Misbah represent plaintiff Brammer. Brammer, which continues active manufacturing at the facility, commenced the suit against Biogen to enforce its contractual extension option, which Biogen said could not be exercised because Brammer, though actively manufacturing at the facility, was not manufacturing on behalf of Biogen. Brammer also asserted claims for breach of the covenant of quiet enjoyment against both Biogen and the Prime Landlord, Trustees of Fourteen Cambridge Center Trust, in connection with the disruptive construction impacts of a large-scale redevelopment project being undertaken at and around the premises in Kendall Square by the Prime Landlord’s beneficiary, Boston Properties Limited Partnership.

Biogen filed a counterclaim seeking a declaration that Brammer could not exercise the option and moved for summary judgment. The court denied Biogen’s pre-discovery motion and granted, sua sponte, declaratory judgment in favor of Brammer’s interpretation of the sublease extension option.

In so ruling, the Court found, as a matter of law, that Brammer was entitled to exercise the options. It held, “Brammer may exercise options to extend the sublease term, at specified times, so long as Brammer is not in default and the Premises are then being actually used for active manufacturing operations as contemplated under the Transaction Agreements.” The Court found it undisputed that Brammer is using the premises for active manufacturing operations to make viral vectors for customers other than Biogen, and that these operations are similar to the manufacturing that Brammer had contracted to provide to Biogen. The sublease allows Brammer to exercise two five-year extensions as of right, subject to these conditions precedent.

The Court also denied Biogen’s motion to dismiss the quiet enjoyment claim against Brammer, rejecting Brammer’s contention that it did not owe an obligation to protect Brammer’s quiet enjoyment, and finding that material issues of fact concerning whether Biogen was fulfilling that obligation precluded dismissal and warranted continuation of the lawsuit with respect to that claim. The Court’s decision vindicated Brammer’s interpretation of its sublease rights, thereby sustaining its valuable and important lease extension rights.