Bioquest Venture Leasing Company-A, N.V. v. VivoRx Autoimmune, Inc. (Nov. 5, 2009, B201454) 2009 WL 3719534 [nonpublished opinion]

Plaintiff sued GMSR’s client VivoRx for breach of a biotechnology license agreement that was silent on choice of law. VivoRx argued that California law applied, and that it barred plaintiff’s claims as untimely, while plaintiff insisted that Massachusetts law governed the lawsuit, and that its claims were timely under Massachusetts’ longer statute of limitations. The trial court applied Massachusetts law, and entered a multi-million dollar judgment against VivoRx.

The Court of Appeal reversed the judgment, adopting GMSR’s arguments on two grounds. First, that plaintiff’s contract with VivoRx did not incorporate by reference an earlier agreement between plaintiff and a third party that contained a Massachusetts choice of law clause, even though VivoRx had agreed to assume all of the third party’s obligations under that earlier agreement. And second, that under both governmental interest analysis and Civil Code section 1646, it was California’s shorter statutes of limitations that determined the timeliness of plaintiff’s claims.

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