FTC would ‘eviscerate’ attorney-client privilege, says Boehringer
The Federal Trade Commission’s (FTC) attempt to obtain Boehringer Ingelheim’s documents relating to a patent dispute settlement would “eviscerate attorney-client privilege”, Boehringer told a US court on Friday, May 26.
Boehringer made the statement as part of a response and principal brief of cross-appeal at the US Court of Appeals for the District of Columbia.
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.
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 prior to the expiration of Boehringer’s patents, covering Aggrenox (aspirin-dipyridamole) and Mirapex (pramipexole).
So-called pay-for-delay settlements have been the target of FTC investigations in recent years.
The FTC has challenged Boehringer’s privilege claims over settlement-related documents and communications with Persky.
Boehringer said in its cross-appeal: “[The US District Court for the District of Columbia] protected from disclosure all of Boehringer’s attorney-client privilege documents at issue in this appeal. That ruling was correct.”
The company added: “The FTC ignores that evidence in derogation of both reality and its duty of candour, because that evidence precludes a ruling that the district court committed clear error in its factual findings regarding attorney-client privilege.”
The FTC told the Court of Appeals in March that “serious problems” can arise when companies use executives who are also lawyers to negotiate business deals.
According to the FTC, Boehringer had improperly relied on the settlement negotiator as a lawyer, as well as a business negotiator.
“Often ... the ‘lawyer’ acted as a businessperson, not a legal advisor, and the documents concern business matters, not legal ones,” said the FTC.
It added: “Boehringer refused to produce documents relevant to an FTC antitrust investigation on the ground that the documents had been created by or at the request of its general counsel, who had negotiated potentially anti-competitive business deals.”
Today’s stories:
Fed Circuit vacates and remands PTAB’s decision
Appleyard Lees appoints partner in Cambridge, UK
UK Court rejects request for summary judgment
Janssen enters into licence with Protagonist
Did you enjoy reading this story? Sign up to our free newsletters and get stories like this sent straight to your inbox.
