AbbVie Appeals To Supreme Court Over Attorney-Client Privilege In 'Long-Standing' AndroGel Case

AbbVie Inc ABBV has petitioned the U.S. Supreme Court to protect its corporate records, arguing that a lower court ruling threatens the confidentiality of attorney communications.

The pharmaceutical company is seeking to overturn a decision by the 3rd U.S. Circuit Court of Appeals, stating that filing a sham patent-infringement lawsuit could override attorney-client privilege.

The case stems from allegations in the Philadelphia federal court where drug wholesalers, including Cencora Inc COR (formerly AmerisourceBergen) and McKesson Corporation MCK, claim they were overcharged for the testosterone replacement drug AndroGel.

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The wholesalers allege that AbbVie filed a baseless patent infringement lawsuit against Perrigo Company plc PRGO in 2011 to delay the release of a cheaper generic version of AndroGel.

In February, the 3rd U.S. Circuit Court of Appeals ruled that AbbVie must provide the wholesalers with 19 documents containing notes from in-house attorneys and memos from outside legal counsel regarding the Perrigo lawsuit.

The court reasoned that the sham patent case constituted fraudulent activity, thus triggering the crime-fraud exception to attorney-client privilege.

AbbVie contends that this ruling significantly broadens the scope of the crime-fraud exception and conflicts with the interpretation of “fraud” by the Washington, D.C.-based Federal Circuit, which specializes in intellectual property litigation. AbbVie warned that the decision could encourage plaintiffs to file antitrust lawsuits by alleging that related patent litigation was a sham, potentially allowing them to access internal attorney records.

The Supreme Court petition is part of AbbVie’s long-standing legal battle over AndroGel. The product saw annual U.S. net sales exceeded $1 billion before generic versions entered the market in 2015.

A Reuters report added that the wholesalers’ case was initiated in 2019. It followed a Federal Trade Commission lawsuit against AbbVie that has since been resolved.

Price Action: ABBV shares are up 0.45% at $170.68 at last check Friday.

Disclaimer: This content was partially produced with the help of AI tools and was reviewed and published by Benzinga editors.

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