AbbVie is asking the Supreme Court to reconsider a lower court’s ruling that attorney records are fair game in a case involving testosterone med AndroGel.
The petition issued Thursday argues that a February ruling from the Third Circuit Court of Appeals forcing AbbVie to turn over communications with its attorneys would set a concerning precedent. Drug wholesalers suing AbbVie have argued that communications between AbbVie and its lawyers would prove that the large pharma baselessly sued drug manufacturer Perrigo back in 2011.
The more-than-decadelong saga is, at its heart, an antitrust story, with numerous stakeholders taking a shot at the large drugmaker. After AbbVie and Perrigo settled their original suit, the Federal Trade Commission sued in 2014, alleging that AbbVie, and its partner Besins Healthcare, filed sham lawsuits against Perrigo and Teva to stave off competition in the market. Federal courts sided with the FTC, but the appeals court said the agency was not entitled to any relief.
Wholesalers took the baton from there, including major players like AmerisourceBergen, Cardinal Health and McKesson. In 2019, they argued along the FTC’s lines that the original litigation was baseless, and that because previously rulings sided with that argument, then attorney communications should be submitted under the “crime-fraud exception.” The courts concurred and asked AbbVie to produce 19 “otherwise privileged documents.”
In its appeal to the Supreme Court, AbbVie argues that the Third Circuit’s decision is at odds with previous rulings from the Federal Circuit, which has nationwide jurisdiction in select subject areas that include patent law. AbbVie cited previous Federal Circuit rulings that to pierce attorney-client privilege using the “crime-fraud exception,” lawyers must prove that common-law fraud was committed.
The company argues that the Third Circuit’s application of the crime-fraud exception is “wrong” and “will have extremely harmful effects.” It believes that as it stands, the Third Circuit’s ruling incentivizes antitrust claims that would produce more favorable settlements, lest companies risk their attorney-client communications being disclosed in court.
“The conflict between the Federal and Third Circuits is irreconcilable,” lawyers for AbbVie wrote in their petition.
A spokesperson for the company did not immediately respond to a request for comment on the legal filing.