Basic instinct: Securities class by presumption
Five pharma litigation hot topics in three minutes
United States | Video | maart 2021 | 03:46
Video Details
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I’m Darryl Anderson, and this is Norton
Rose Fulbright’s The Pharma 5.
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A group of Teva investors won class action
status from a Connecticut federal judge
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in their securities lawsuit
against the manufacturer.
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The investors claim Teva violated securities
laws by consistently attributing Teva’s
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financial success to good business decisions
when, in reality,
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Teva’s rapid growth was due
to its participation in
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a generic drug price fixing conspiracy.
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The court relied on plaintiff’s expert to
hold that Teva’s securities were traded in
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an efficient market, and the plaintiffs
were therefore entitled to
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the “Basic” presumption that individual
class members each relied
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on Teva’s alleged misstatements and
purchasing securities.
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With the presumption, a class.
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Gentle reminder, everyone, that
injunctions can be expensive.
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A federal court in Illinois recently granted
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a preliminary injunction to Life Spine Inc.
to protect its trade secrets related to
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surgical spine devices, which were allegedly
misappropriated by its former distributor
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Aegis Spine Inc.
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The court enjoined Aegis
from producing or selling knockoff devices,
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but also required Life Spine to post
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a security bond of six million dollars
pending the outcome of the litigation.
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Pharma executives in the cross hairs again.
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In a securities class action involving Vanda
Pharmaceuticals and its executives,
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plaintiffs alleged the defendants
artificially inflated
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the stock price by marketing two
drugs for off label uses.
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The New York federal court denied
defendants’ motions to dismiss,
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finding plaintiffs properly
pled scienter as to the CEO
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which could then be imputed to Vanda.
Allegations that Vanda’s CEO, quote,
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“actively participated in trainings where
Vanda’s salesforce was directed to market
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[two Vanda drugs] to individuals who did not
suffer from diseases those drugs were
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approved to treat,” were sufficient
to survive dismissal.
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A big win on the antitrust front
for Becton Dickinson for a second time.
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Health care providers had filed
an amended complaint
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claiming a conspiracy between BD and
distributors to impede competition
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in the safety syringe and catheter market.
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On a 12(b) motion, the Illinois Federal Court
found no facts showing that BD conspired with
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distributors to inflate prices or that the
distributors had received a quid pro quo
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for anti-competitive acts. Bonuses and
incentive programs for sales staff,
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higher distribution fees and guaranteed
purchasing volume from long term contracts
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were not enough to establish a conspiracy.
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Dust off your Bluebook, or better yet,
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maybe throw it out. As someone who long
ago worked on revising that manual,
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it hurts just a little bit to say that.
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But Supreme Court Justice
Clarence Thomas recently used
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the parenthetical “(cleaned up)” in a SCOTUS
opinion citation to indicate
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the omission of the string
of quotation marks,
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ellipses and brackets from
a quoted authority.
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And this isn’t just some
GenZ Tik Tok thing.
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The “(cleaned up)” parenthetical was proposed
back in 2017 by Gen Xer
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Jack Metzler, an FTC attorney.
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It was soon thereafter blessed by
legal writing guru Bryan Garner.
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No word yet on which of Justice Thomas’s
clerks made the bold move, but bravo.
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And feel free to “clean up your own” cites.
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Thanks for watching Norton Rose Fulbright’s,
The Pharma 5.
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Do I need to Bluebook that?
This week, Darryl Anderson, whose practice focuses on a range of complex business litigation including RICO, antitrust and competition, and False Claims Act lawsuits, discusses:
- Securities class certification
- Trade secrets injunction
- Securities fraud scienter
- Antitrust dismissal
- Did you know?