United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON, CHIEF JUDGE.
the Court is the Akorn Defendants' Expedited Motion for
Change of Venue Pursuant to 28 U.S.C. § 1404(a) (Doc. 6)
filed by Defendants Adrienne L. Graves, Alan Weinstein, Brian
Tambi, John N. Kapoor, Kenneth S. Abramowitz, Raj Raj, Ronald
M. Johnson, Steven J. Meyer, Terry A. Rappuhn, and Acorn,
Inc. (collectively, "Akorn Defendants"). The Akorn
Defendants seek an Order from this Court transferring the
above-captioned action, as well as five other related actions
(collectively, "Related Actions"),  to the United
States District Court for the Northern District of Illinois.
Pursuant to Federal Rule of Civil Procedure 42, the Court
consolidated the Related Actions into the above-captioned
action for the limited purpose of resolving the issue of
venue. (See Doc. 31). Plaintiffs in the Related
Actions filed an Omnibus Memorandum of Law in Opposition to
Defendants' Expedited Motion for Change of Venue (Doc.
38). The Akorn Defendants thereafter filed a Reply Memorandum
in Further Support of Akorn Defendants' Expedited Motion
for Change of Venue Pursuant to 28 U.S.C. § 1404(a)
(Doc. 33). For the reasons explained herein, the Akorn
Defendants' Expedited Motion for Change of Venue Pursuant
to 28 U.S.C. § 1404(a) (Doc. 6) is GRANTED.
Akorn, Inc. ("Akorn") is a Louisiana corporation
that develops and manufactures specialty generic
pharmaceuticals. (Doc. 3-7 at p. 9). Although incorporated in
Louisiana, Akorn's corporate headquarters has been
located in Illinois since 1997. (Doc. 3-9 at ¶ 3). On
April 24, 2017, Akorn entered into an Agreement and Plan of
Merger ("Merger Agreement") with Fresenius Kabi AG
("Fresenius Kabi"), a German stock corporation, and
Quercus Acquisition, Inc. ("Quercus"), a Louisiana
corporation and a wholly owned subsidiary of Fresenius Kabi.
(Doc. 3-7 at p. 3). Under the terms of the agreement, Quercus
would be merged with Akorn, with Akorn surviving the merger
as a subsidiary of Fresenius Kabi. (Id., ).
15, 2017, Akorn issued a Definitive Proxy Statement (Doc.
3-7) pursuant to section 14(a) of the Securities Exchange Act
of 1934 ("Exchange Act") in connection with the
Merger Agreement, informing Akorn shareholders that a special
meeting would be held on July 19, 2017, at which the
shareholders would vote on the Merger Agreement.
(Id. at p. 3-5). Plaintiffs in the Related Actions
filed suit, alleging that the Akorn Defendants misrepresented
and omitted material information in the Definitive Proxy
Statement concerning the Merger Agreement, in violation of
sections 14(a) and 20(a) of the Exchange Act. (See,
e.g., Doc. 1). Five out of the six Plaintiffs in the
Related Actions filed suit in this Court, while one of the
Plaintiffs initially filed suit in the United States District
Court for the Northern District of Illinois ("Northern
District of Illinois"), voluntarily dismissed that suit,
and refilod suit in this Court. (See Doc. 3-6). In
addition to the Related Actions, two shareholders brought
state-law claims in relation to the Merger Agreement in the
Circuit Court of Cook County, Illinois. (See Docs. 3-4, 3-5).
Akorn Defendants filed Motions in all of the Related Actions
pursuant to 28 U.S.C. § 1404(a), petitioning the Court
to transfer the Related Actions to the Northern District of
Illinois. (See, e.g., Doc. 6). The Court then
consolidated the Related Actions, pursuant to Rule 42, into
the above-captioned action for the limited purpose of
resolving the issue of venue. (See Doc. 31).
a plaintiff has the privilege of filing his claims in any
judicial division appropriate under the general venue
statute, [28 U.S.C] § 1404(a) tempers the effects of the
exercise of this privilege." In re Volkswagen of
Am., Inc., 545 F.3d 304, 313 (5th Cir. 2008). 28 U.S.C
§ 1404(a) provides that "[f]or the convenience of
parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or
division where it might have been brought." 28 U.S.C.
analyzing whether an action may be transferred to another
district, the Court first must first determine "whether
[the] action 'might have been brought' in the
destination venue." In re Volkswagen, 545 F.3d
at 312 (quoting 28 U.S.C. § 1404(a)). Second, the Court
must evaluate the "private and public interest
factors" that are utilized under the forum non
conveniens doctrine to determine whether a transfer of
venue under 28 U.S.C. § 1404(a) "is for the
convenience of the parties and witnesses and in the interest
of justice." Id. at 315. "The private
interest factors are ... '(1) the relative ease of access
to sources of proof; (2) the availability of compulsory
process to secure the attendance of witnesses; (3) the cost
of attendance for willing witnesses; and (4) all other
practical problems that make trial of a case easy,
expeditious and inexpensive.'" Id. (quoting
In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir.
2004)). "The public interest factors are . . . '(1)
the administrative difficulties flowing from court
congestion[, ] (2) the local interest in having localized
interests decided at home[, ] (3) the familiarity of the
forum with the law that will govern the case[, ] and (4) the
avoidance of unnecessary problems of conflict of laws [or in]
the application of foreign law.'" Id.
(quoting In re Volkswagen AG, 371 F.3d at 203).
burden that a movant must meet to justify a transfer of venue
under 28 U.S.C. § 1404(a) "is less demanding than
that a mov[ant] must meet to warrant a forum non
conveniens dismissal." Id. at 314. In
order to warrant a transfer of venue under 28 U.S.C. §
1404(a), a movant simply must "demonstrate that the
transferee venue is clearly more convenient."
Id. at 315.
Court finds that the Akorn Defendants overwhelmingly have
demonstrated that the Northern District of Illinois is a more
convenient venue. As a preliminary matter, it is undisputed
that the Related Actions "might have been brought"
in the Northern District of Illinois, 28 U.S.C. §
1404(a); indeed, one of the Related Actions initially
was brought in the Northern District of Illinois.
(See Doc. 3-6).
private and public interest factors weigh heavily in favor of
transfer. None of the persons named as Defendants reside in
Middle District of Louisiana, nor did any of the conduct
giving rise to this action take place in this district. (Doc.
3-9 at ¶ 12). In fact, there is no indication that any
potential evidence related to the Merger Agreement is located
in the Middle District of Louisiana. (Id. at
¶¶ 12-13). All of the relevant evidence in this
action and the majority of the relevant witnesses are located
in the Northern District of Illinois, where Akorn's
corporate headquarters is located, (id, ), which
weighs in favor of transfer to that district. In re
Volkswagen, 545 F.3d at 316. Plaintiffs' argument to
the contrary - that the location of such evidence is
irrelevant to the analysis under 28 U.S.C. § 1404(a)
because the evidence may be easily obtained - was summarily
rejected by the United States Court of Appeals for the Fifth
Circuit in In re Volkswagen of America, Inc, 545
F.3d 304 (5th Cir. 2008). See Id. (holding that the
presence of all the relevant evidence in the transferee venue
weighed in favor of transfer, regardless of the ease with
which the parties could have electronically transported the
evidence to the existing venue, reasoning that simply because
"access to some sources of proof presents a lesser
inconvenience now than it might have absent recent
developments does not render this factor superfluous").
none of the relevant witnesses are located in or near the
Middle District of Louisiana and thus are not subject to the
Court's subpoena power under Rule 45, the Northern
District of Illinois enjoys absolute subpoena power over the
majority of relevant witnesses, (see id. at
¶¶ 6-7, 12), which weighs in favor of transfer. See
id. Further, because the majority of relevant
witnesses reside in the Northern District of Illinois,
(see id.), nearly 1, 000 miles from the Middle
District of Louisiana, the witnesses would experience ample
inconvenience if required to travel to this district to
testify, which also weighs in favor of transfer. See In
re Volkswagen AG, 371 F.3d at 204-05 ("When the
distance between an existing venue for trial of a matter and
a proposed venue under [28 U.S.C.] § 1404(a) is more
than 100 miles, the factor of inconvenience to witnesses
increases in direct relationship to the additional distance
to be traveled."). Additionally, if this action were to
remain in this district, Defendants would encounter
inconvenience due ...