Advocacy groups file brief to support Boehringer’s dispute against FTC
The US Chamber of Commerce and the Association of Corporate Counsel (ACC) have filed an amicus curiae brief in support of Boehringer Ingelheim Pharmaceuticals in its dispute with the Federal Trade Commission (FTC).
The brief was filed on Friday, June 2, at the US Court of Appeals for the District of Columbia Circuit.
As part of a subpoena, the FTC has urged the court to disregard the attorney-client privilege between Boehringer and its then-counsel, Marla Persky.
Boehringer told the court on May 26 that the FTC’s attempt to obtain Boehringer’s documents relating to a patent dispute settlement would “eviscerate attorney-client privilege”.
Boehringer made the statement as part of a response and principal brief of cross-appeal at the same court of appeals.
The FTC is currently investigating two 2008 patent settlement agreements that Boehringer entered into with generic drugs company Barr Laboratories.
The settlements resolved patent infringement actions brought by Boehringer against Barr and allowed Barr to market two generic products before the expiration of Boehringer’s patents covering Aggrenox (aspirin-dipyridamole) and Mirapex (pramipexole).
The Chamber of Commerce and ACC said in the brief that the FTC was taking an in-house counsel’s “greatest strength” and “transform[ing] it into a liability”.
According to the brief, the FTC has said that Persky must “prove which hat she wore” during the patent settlement agreement between Boehringer and Barr.
But the brief argued that it is common for an in-house counsel to be involved in the affairs of the corporation and hold both a legal title (as general counsel) and a corporate one (as vice president).
It further argued that the constriction of the attorney-client privilege would be “significant”, as without assurances it would make businesses less likely to disclose facts to their attorneys and to seek legal advice.
This, the parties argued quoting Upjohn v US, would “limit the valuable efforts of corporate counsel to ensure their clients’ compliance with the law”.
So-called pay-for-delay settlements have been the target of FTC investigations in recent years.
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