AbbVie is asking the U.S. Supreme Court to overrule a lower court’s ruling that the company must turn over records of communications with its lawyers regarding a patent lawsuit it filed against a generic drug maker more than a decade ago.
While attorney-client communications are normally protected, last year a U.S. federal court in Philadelphia—presiding over a related case in which several wholesalers are suing AbbVie for overcharging them for testosterone replacement therapy AndroGel—ordered the company to provide 19 documents detailing communications between its team of patent lawyers from the original case against Perrigo.
Judge Harvey Bartle III ruled that under a crime-fraud exception, AbbVie’s legal communications are not protected. The exception can be applied if a client’s communications with lawyers were conducted to further a crime.
In the original 2011 case, AbbVie was found to have violated antitrust laws by filing a sham lawsuit in its effort to keep Perrigo’s generic version of AndroGel off the market.
In February, the U.S. Court of Appeals for the Third Circuit rejected (PDF) AbbVie’s appeal of Bartle’s ruling, leading the company to turn to the Supreme Court. In its petition (PDF) filed this week, AbbVie asserts that “the Third Circuit has vastly expanded the scope of the crime fraud exception” and that the ruling is “doubly destructive” to the attorney-client privilege and “thus to a crucial part of the bedrock on which our legal system rests.”
In the current lawsuit against AbbVie and its partner Besins Healthcare, which was filed in 2019, several drug distributors claim that AbbVie’s effort to delay generic competition caused them to overpay for AndroGel.
Sales of AndroGel reached $1.1 billion in 2012 before plummeting with news of its cardiovascular risks. In 2017, the company was ordered to pay a combined $290 million to two users of the product who suffered heart attacks.
AbbVie lost an antitrust case brought by the U.S. Federal Trade Commission and was ordered to pay $448 million. An appeal by the company overturned the judgment, but the ruling remained intact that AbbVie violated antitrust law in bringing the lawsuit against Perrigo to delay its generic version of AndroGel.