Amicus Brief: In re Merck Mumps Vaccine Antitrust Litigation
COSAL’s Amicus Committee filed a brief in In re Merck Mumps Vaccine Antitrust Litigation. The brief was filed in support of Plaintiffs-Appellees’ Petition for Rehearing and Rehearing En Banc from the Third Circuit’s order, which had reversed the district court’s decision and granted summary judgment in favor of Merck based on Noerr-Pennington immunity. Specifically, the Panel held that even though the record evidence showed that Merck maintained its drug label by withholding information from the FDA showing that Merck’s mumps vaccine suffered from end-of-shelf-life potency issues (thereby making misrepresentations or material omissions to the FDA): (1) Merck engaged in petitioning activity when it sought and obtained the FDA’s approval to make its drug-label claims; (2) Merk’s petitioning conduct was not a sham because it “genuinely sought and obtained that governmental action”; and (3) plaintiffs’ alleged antitrust injury flowed from the FDA’s decision.
COSAL’s brief argued that the Panel erred (1) by concluding that Third Circuit precedent required the court to apply Noerr-Pennington immunity to Merck’s successful petitioning of the FDA through fraud or deceit; and (2) by creating a circuit split between the Third Circuit and all other circuits that have weighed in on the issue, concluding that the Noerr-Pennington doctrine does not shield from antitrust enforcement the abuse of agency processes by making material misrepresentations and omissions. Overall, COSAL argued, the Panel’s decision stood to create a loophole within the Noerr-Pennington doctrine that would make defendants immune from antitrust liability where they successfully petitioned a government agency using fraud or misrepresentations.
The brief was drafted by Deborah Elman and Kristie LaSalle, with assistance from David Cialkowski, Nate Regenold, and Tony Stauber.
