AMENDED OPINION AND ORDER* Impax Laboratories, Inc. (“Impax”) brought this action for declaratory judgment and breach of contract against Turing Pharmaceuticals AG (“Turing”)1 on May 2, 2016, seeking to recover millions of dollars of rebate liability related to sales of the prescription drug Daraprim. Turing counterclaimed, asserting breach of the same contract and breach of the duty of good faith and fair dealing. On September 29, 2017, the Court granted in part and denied in part the parties’ cross-motions for summary judgment. See Impax Labs., Inc. v. Turing Pharms. AG, No. 16 Civ. 3241 (ER), 2017 WL 4357893 (S.D.N.Y. Sept. 29, 2017). Impax has filed a motion for clarification and/or reconsideration. See Doc. 112. For the reasons discussed below, Impax’s motion is GRANTED in part and DENIED in part.I. BACKGROUNDA. Factual Background2The Court assumes familiarity with the record and its prior opinion, which details the facts and procedural history of this case, and discusses here only those facts necessary for its disposition of the instant motion. See Impax Labs., 2017 WL 4357893.In March 2015, as part of its acquisition of Tower Holdings, Inc. and Amedra Pharmaceuticals LLC (“Amedra”), Impax acquired the U.S. marketing rights for Daraprim. See Am. Compl. (Doc. 34) 14. Darapim is an antiprotozoal medication mainly used to treat toxoplasmosis, a high risk and life-threatening disease for those affected by HIV, AIDS, cancer, and other diseases that weaken the immune system. Id. Impax also acquired certain inventory of Daraprim, labeled with Amedra’s labeler codes, and assumed Amedra’s obligations under its Medicaid rebate agreement with the Centers for Medicare and Medicaid Services (“CMS”), including certifying pricing data for sales of Daraprim to CMS. Id.
16-17.Shortly thereafter, Turing sent Impax a proposal to purchase the marketing rights for Darapim. On August 7, 2015, the two executed the Asset Purchase Agreement (the “APA”) for the sale of the rights to Daraprim; the transaction closed on August 10, 2015. Plaintiff’s Rule 56.1 Statement of Undisputed Material Facts (“Pl.’s 56.1″) (Doc. 83) 1; Defendant’s Rule 56.1 Statement of Undisputed Material Facts (“Def.’s 56.1″) (Doc. 94-1) 17. As part of the transaction, Impax transferred inventory of 12,521 100-count bottles of Amedra-labeled Darapim to Turing. Pl.’s 56.1 1. Under the APA, the parties agreed that Turing would sell the inventory of Amedra-labeled Darapim during a contractually prescribed timeframe, while Impax would remain responsible for certifying pricing data to CMS and paying Medicaid rebate liability to state Medicaid agencies. Pl.’s 56.1 18; Def.’s 56.1 34.3 The parties agreed that Turing would, in turn, reimburse Impax for certain Medicaid liabilities. See Def.’s 56.1 20-22; Memorandum of Law in Support of Impax’s Motion for Summary Judgment (“Pl.’s Mem.”) (Doc. 84), at 2; Declaration of Benjamin Naftalis in Support of Impax’s Motion for Partial Summary Judgment (Doc. 79) Ex. 1 (“APA”) §9.2, Ex. E.On August 11, 2015 — one day after the close of the APA — Turing raised the price of Daraprim from Impax’s price of $17.63 per pill to $750 per pill. Pl.’s 56.1 21. On October 28 and 29, 2015, Turing provided Impax with its certification of pricing for the third quarter of 2015 (“Q3 2015″) — including a quarterly average manufacturer price (“AMP”) of $750 — which Impax in turn certified to CMS. Pl.’s 56.1
