Lawyer Files Antitrust Objection To Vioxx Deal
6 CommentsBy Ed Silverman // January 23rd, 2008 // 1:50 pm
You may recall that the $4.85 billion Vioxx settlement prompted concern and debate over an unusual provision that requires a plaintiff’s lawyer to recommend the deal to all clients, stop representing any client who doesn’t take the deal and not represent a new client who also doesn’t want to participate. The issue, as Ben Zipursky of Fordham University Law School told us when the deal was announced two months ago is that the plaintiffs’ lawyers are “obligated to push the settlement. That conflicts with the obligation to do what’s best for the client.”
And so the settlement was widely criticized and various lawyers raised objections, although a federal judge overseeing Vioxx litigation last week seemed satisfied with a compromise - attorneys are directed to exercise their “independent judgment in the best interests of each client individually before recommending enrollment in the program.†But that’s not good enough for George Cohen of the University of Virginia Law School. (That’s George in the photo).
During a panel discussion earlier this month about the settlement, he criticized numerous the provision tirelessly (you can watch it here, but it’s lengthy). Now, he’s made good on his word that the deal violates antitrust law and has filed a complaint with the Federal Trade Commission.
Date: Wed, 09 Jan 2008 11:58:32 -0500
From: George Cohen
To: antitrust@ftc.gov
Dear FTC:
I write to raise a potential antitrust issue concerning the recent Vioxx “Settlement” Agreement…
…This is not a class action but a completely private agreement that is designed to settle in an aggregate way claims related to Vioxx against Merck. No judicial approval or enforcement is contemplated. The Agreement contains a provision under which any lawyer who “enrolls” any one of his clients in the settlement Program must commit to recommend the deal to all of his clients and if any of those clients declines the settlement, the lawyer must withdraw from continuing to represent that client as well as commit not to represent the client of any other lawyer who has enrolled clients in the settlement. Effectively, Merck and the Negotiating Plaintiffs Counsel who signed the Agreement are trying to coerce claimants into joining the settlement even if they don’t want to do so by depriving them of the ability to be represented by the best qualified lawyers should they choose to pursue their claims individually. In my view, this provision is a per se illegal group boycott (concerted refusal to deal) under the Superior Court Trial Lawyers case. I don’t see any plausible state action or Noerr-Pennington defense here because the deal is purely private.
I’d be happy to discuss this matter further if you’d like.
Sincerely,
George Cohen
Hat tip to Point of Law, which first reported this, and Drug and Device Law
James
I don’t know enough about the law–I Am Not A Lawyer. However, from a common-sense standpoint, and based upon what I learned at undergrad (where I did major in law), he would seem to have a claim. The most troubling aspect for me is “if any of those clients declines the settlement, the lawyer must withdraw from continuing to represent that client as well as commit not to represent the client of any other lawyer who has enrolled clients in the settlement.”
That would seem to deny plaintiffs of their chosen counsel. Of course, an attorney can choose not to represent a client for any reason–one of the most common is a conflict of interest (counsel already represents a different client in the same case). However, based on the way this is structured, it would seem that plaintiff’s counsel would, in agreeing to this, have created an obligation to defendant.
Sounds like a problem to me. But, again, IANAL.
noble
I am a plaintiff in the Merck vioxx debacle. Many are unaware of the
tens of thousands, whose lives have been changed by the poisonous
vioxx that made Merck billions. Merck has allegedly misinformed and
manipulated the FDA, and now our tort system, drawing the plaintiff’s
attorneys into their web of damage control to the point of vile
illegitimacy. … My focus in this letter is upon the “settlement” .
Better titled “An Antitrust Conspiracy!”
You have proven yourself a fighter with conscience and moral fiber.
Please review Adam Laptik’s article in the NY Times 1/22/08, and Law Ethics Professor George Cohen’s AEI panel comments 1/7/08. This new model of “tort reform” should it prevail, has far reaching ramifications that promise to corrupt the very foundation of our legal system. Merck would have the public believe that they have
taken the high road, I think you otherwise.
Moost feel that this story is a closing curtain, but I assure you it is but a spore to a field of deadly mushrooms.
noble
I am a plaintiff in the Merck vioxx debacle. Many are unaware of the tens of thousands, whose lives have been changed by the poisonous vioxx that made Merck billions. Merck has allegedly misinformed and manipulated the FDA, and now our tort system, drawing the plaintiff’s
attorneys into their web of damage control to the point of vile illegitimacy. … My focus in this letter is upon the “settlement” .
Better titled “An Antitrust Conspiracy!”
Please review Adam Laptik’s article in the NY Times 1/22/08, and Law Ethics Professor George Cohen’s AEI panel comments 1/7/08. This new model of “tort reform” should it prevail, has far reaching ramifications that promise to corrupt the very foundation of our legal system. Merck would have the public believe that they have taken the high road, I think otherwise.
Most feel that this story is a closing curtain, but I assure you it is but a spore to a field of deadly mushrooms.
Brian
Noble [sic]
Have fun with all that money. I wish I had relatives like you..By the way aspirin and ibuprofen also harms folks with pain. Don’t worry there will be no further research around pain treatments because of you. Many ten’s of millions of pain sufferers will be impacted by that…best wishes in FLA
Butch
Brian - You are unfortunately ill informed. There is no danger that research will be hampered by this or other legal actions. Drug companies spend far more on advertising than research. Most research is conducted in university and government labs - pharma companies can buy patent rights on this research at bargain rates considering what they may gain in the end - thus the taxpayers subsidize the drug companies. In addition, few real breakthrough drugs are discovered. Most are “me too” drugs, with a twist that allows the company to stick a patent on it and claim superiority of some kind.
Those injured after taking Vioxx are simply demanding justice. Merck pushed a drug they knew caused a thrombitic state, and they attempted to hide or minimize the dangers.
Ted
“There is no danger that research will be hampered by this or other legal actions.”
This is absolutely untrue. Pharmaceutical litigation has killed research into contraceptives, vaccines, and morning sickness drugs.