AbbVie asks US Supreme Court to weigh protections for attorney records

Perrigo

11/07/2024 17:38

By Mike Scarcella
       July 11 (Reuters) - Pharmaceutical company AbbVie
 ABBV.N  has asked the U.S. Supreme Court to take up its fight
to protect corporate records, warning that a lower court ruling
threatens to erode the shield that keeps most attorney
communications off-limits from a company's courtroom opponents.
    The Illinois-based drugmaker petitioned the justices this
week to review a U.S. appeals court decision that said the
filing of a sham patent-infringement lawsuit can overcome
attorney-client privilege.
    AbbVie is battling allegations in Philadelphia federal court
from a group of drug wholesalers that claim they were
overcharged for the blockbuster testosterone replacement drug
AndroGel.
    Purchasers including AmerisourceBergen and McKesson said
AbbVie pursued a meritless patent case against drugmaker Perrigo
 PRGO.N  in 2011 to delay its marketing of cheaper generic
version of AndroGel. 
    The 3rd U.S. Circuit Court of Appeals in February ruled that
AbbVie must turn over to the wholesalers 19 documents that
include in-house attorney notes and memos from outside attorneys
addressing the company’s lawsuit against Perrigo. 
    The appeals court said sham patent cases can be considered
fraudulent activity that triggers what is known as the
crime-fraud exception, which pierces the attorney-client
privilege if a client's communication with an attorney was made
with the intention to further a crime.
    AbbVie told the justices that the ruling greatly expanded
the crime-fraud exception. It said the 3rd Circuit and the
Washington, D.C.-based Federal Circuit, which specializes in
litigation over intellectual property, are in conflict over what
“fraud” triggers the exception. 
    The 3rd Circuit’s decision will incentivize plaintiffs to
file antitrust lawsuits claiming that related patent litigation
was a sham, AbbVie told the Supreme Court. Those plaintiffs
would be able weaponize the threat that they will get their
hands on internal attorney records.
    AbbVie and attorneys for the wholesalers did not immediately
respond to requests for comment on Wednesday. AbbVie denies
wrongdoing. The company, which was spun off by Abbott
Laboratories in 2012, has said it had a valid basis to sue
Perrigo.
    AndroGel’s annual U.S. net sales sometimes topped $1 billion
before 2015, when generic versions entered the market.
    Litigation over AndroGel has dragged out for years, and
included a Federal Trade Commission lawsuit that has since been
resolved. The drug wholesalers’ case against AbbVie was filed in
2019.
    
    The case is In re: Abbott Laboratories et al, U.S. Supreme
Court, unassigned.
    For petitioners: Donald Verrilli of Munger, Tolles & Olson
    For respondents: No appearance yet
    
    Read more:
    Here’s what AbbVie doesn’t want you to know about its sham
AndroGel patent case
    Perrigo loses bid to revive antitrust case against AbbVie
over AndroGel
    U.S. Supreme Court rebuffs AbbVie appeal in patent fight
involving AndroGel drug
    U.S. court voids $448 million award against AbbVie, but
revives FTC claim over AndroGel

 (Reporting by Mike Scarcella)
 ((Mike.Scarcella@thomsonreuters.com;))