Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Boehringer seeks Supreme Court review in pay-for-delay related suit, (Nov 3, 2015)

By Greg Hammond, J.D.

Boehringer Ingelheim Pharmaceuticals, Inc. is asking the U.S. Supreme Court to review a decision by the U.S. Court of Appeals in Washington, D.C., which held that the FTC may discover Boehringer’s alleged work product concerning a settlement agreement that raised pay-for-delay concerns about the prescription drugs Aggrenox and Mirapex (Boehringer Ingelheim Pharmaceuticals, Inc. v. FTC, Dkt. 15-560).

After learning of the possibly anticompetitive settlement agreement, the FTC initiated an investigation and served Boehringer with a subpoena. Boehringer failed to meet a deadline for production and the Commission filed a petition in district court for an order enforcing the subpoena. Boehringer eventually completed production, but withheld approximately a quarter of the identified responsive documents as protected under the attorney-client privilege and the work product doctrine. After the FTC objected to the withheld documents, the district court concluded that: (1) the documents analyzing litigation outcomes and the settlement terms, along with the co-promotion agreement, were prepared in anticipation of litigation, and were therefore work product; and (2) the withheld materials constituted opinion work product, and were properly withheld under the work product doctrine.

The U.S. Court of Appeals in Washington, D.C. vacated the lower court’s opinion in part, affirmed in part, and remanded for further proceedings. In particular, the appellate court found that some of the financial analyses at issue were fact work product, not opinion work product, that the lower court could order produced upon a showing of “substantial need” and “undue hardship.”

In its petition, Boehringer argues that review should be granted because the appellate court erroneously narrowed the scope of opinion work product protection and erroneously held that no heightened relevance is required to show “substantial need,” creating two circuit splits.

The questions presented are: (1) Did the D.C. Circuit err when it held, in conflict with the Second Circuit, that analyses of a proposed settlement’s expected cost and value, directed by an attorney and under the framework and using the inputs provided by the attorney, were fact rather than opinion work product if they were prepared in part for a business purpose? (2) Did the D.C. Circuit err when it held, in conflict with the Fourth, Sixth, Seventh, Tenth, and Eleventh Circuits, that to make a showing of “substantial need” sufficient to override work product protection for fact work product, a party need not show that the requested material has any heightened relevance to the case?

Attorneys: Lawrence D. Rosenberg (Jones Day) for Boehringer Ingelheim Pharmaceuticals, Inc.

Companies: Boehringer Ingelheim Pharmaceuticals, Inc.

News: Antitrust FederalTradeCommissionNews