Column: Here’s what AbbVie doesn’t want you to know about its sham AndroGel patent case

Perrigo

25/07/2023 22:04

(The opinions expressed here are those of the author, a
columnist for Reuters.)
    By Alison Frankel
       (Reuters) - Any way you look at it, AbbVie  ABBV.N 
predecessor Abbott Laboratories  ABT.N  made a bad decision when
it sued generic drug maker Perrigo  PRGO.N  in 2011, as Perrigo
geared up to bring a generic version of AbbVie’s testosterone
replacement product AndroGel to market.
    The patent infringement lawsuit failed to delay Perrigo’s
product. Instead, AbbVie ended up paying Perrigo $2 million and
granting the generic maker a license to begin selling a
competing testosterone gel five years before AbbVie’s patent
expired. (I’m using the company’s current name for the sake of
clarity.)
    And that wasn’t all. In 2014, the U.S. Federal Trade
Commission sued AbbVie and others, for trying to squelch
competition for testosterone gel, in part, by filing a sham
lawsuit against Perrigo. The 3rd U.S. Circuit Court of Appeals
eventually ruled in 2020 that AbbVie’s suit against Perrigo was
an objectively baseless sham intended to preserve the company’s
monopoly power. (The appeals court did, however, hold that the
FTC was not permitted to recoup nearly $450 million in allegedly
ill-gotten gains from AbbVie and other defendants.)
    Even now, more than a decade after AbbVie filed the
ill-fated Perrigo patent suit, the company continues to suffer
consequences from it. More than a dozen major drug wholesalers
are pursuing antitrust claims in federal court in Philadelphia
against AbbVie and Besins Healthcare, alleging that AbbVie’s
Perrigo suit was part of an overarching scheme to beat back
competing testosterone gel products.
    Like I said, the Perrigo suit was a strategic boondoggle.
    And now we know that AbbVie’s own lawyers were so skeptical
about their case that they discussed the prospect of facing Rule
11 sanctions for filing the suit – and that even before the case
hit the docket, AbbVie in-house lawyers debated how much their
company would have to pay Perrigo in a settlement.
    We also know, as I'll explain, that AbbVie really does not
want any of those communications among its lawyers to be public.
But in an odd Catch-22 for the company, AbbVie's efforts to keep
the information under wraps only served to highlight precisely
what the company hoped to keep secret.
    An AbbVie spokesperson did not respond to my email. The
company's outside counsel in the drug wholesalers' antitrust
case, Munger, Tolles & Olson and Faegre Drinker Biddle & Reath,
also did not respond to my query.
    Here’s how their bid for secrecy backfired. U.S. District
Judge Harvey Bartle of Philadelphia is presiding over the drug
wholesalers’ suit. Bartle was previously the trial judge in the
FTC’s AndroGel case, in which he concluded that AbbVie’s Perrigo
patent suit was a sham. That finding, as I mentioned, was later
upheld by the 3rd Circuit.
    Bartle said in the drug wholesalers' case that he had not
changed his mind about AbbVie's suit against Perrigo. In
January, he granted summary judgment to the plaintiffs on the
question of whether the Perrigo case was objectively baseless.
    Plaintiffs lawyers, including Berger Montague and Garwin
Gerstein & Fisher, then sought access to about 200 privileged
AbbVie documents under the crime-fraud exception. AbbVie argued
that under Federal Circuit precedent, the crime fraud exception
does not encompass sham litigation, but in March, Bartle held
that 3rd Circuit precedent, not Federal Circuit precedent,
applies to the wholesalers’ antitrust claims. He ordered AbbVie
to produce 100 contested documents for in camera review, then,
after viewing that batch, ordered the company to produce all of
the privileged documents for his review. AbbVie asked for leave
to appeal. Bartle denied it.
    On Thursday, the judge issued his decision on the disputed
documents, granting the plaintiffs access to 19 documents
involving AbbVie's in-house patent lawyers.
    “The attorneys were key decisionmakers who directed the
filing of sham litigation against Perrigo,” he said. “Thus, the
distinction between attorney and client is conflated in this
case.”
    The judge proceeded to explain why he concluded that
specific documents reflected the lawyers’ “furtherance of
fraud.” (Among Bartle's points: AbbVie lawyers talked about why
their preferred venue for the Perrigo suit was New Jersey
federal court, where, in their view, judges take a long time to
resolve patent litigation.)
    Bartle’s opinion was issued on the public docket, without
any redactions. On Friday, AbbVie moved for the opinion to be
partially sealed. AbbVie said it intends to appeal Bartle’s
order that it disclose the 19 documents, so their content should
remain confidential until an appellate court decides whether
they’re privileged.
    The company also docketed a proposed redacted version,
excising references to specific legal advice and strategy. 
    Bartle granted the motion on Monday. The unredacted opinion
is no longer available from Pacer.
    But by then, Westlaw had already processed the opinion and
created a citation. As of Tuesday afternoon, the unredacted
opinion remains available via Westlaw.
    So if you want to see what AbbVie considers the most
sensitive disclosures in Bartle’s opinion, all you have to do is
compare its redacted version of the opinion with the original.
    The lawyer’s discussion of New Jersey’s relatively slow pace
for patent litigation? That’s redacted. Ditto the disclosure
that AbbVie lawyers talked about Rule 11 sanctions for filing
the Perrigo suit and that AbbVie in-house counsel debated how
much they’d have to pay Perrigo in a settlement before they
brought the case accusing Perrigo of infringement.
    To be clear, Bartle did not quote extensively in the
original opinion from the lawyers’ documents, which have not
been publicly docketed. He did not mention any of the in-house
lawyers by name and did not cite specific documents in
discussing why the crime-fraud exception applies. The judge may
have thought he was not disclosing the content of any particular
documents by revealing what they showed in broad strokes.
    I emailed six plaintiffs lawyers in the drug wholesalers'
case to ask about the significance of the disclosures. None
responded.
    But if Bartle’s ruling hold up and they’re permitted access
to the internal defense documents, it sounds like the AbbVie
lawyers’ communications will help the plaintiffs show that the
company’s lawyers attempted to use AbbVie’s power to deter
competitors.
    
    Read more:
    Perrigo loses bid to revive antitrust case against AbbVie
over AndroGel    
    US court voids $448 million award against AbbVie, AndroGel
partner

    
    

 (Reporting By Alison Frankel; editing by Leigh Jones)