Keker, Van Nest & Peters attorneys have handled a wide variety of litigation for leading biotech, pharmaceutical, medical device, and healthcare companies.
As illustrated in the Cases of Note listed below, we have helped our clients secure successful settlements or win at trial for cases involving breach of fiduciary duty, collaboration agreements, intellectual property and false advertising.
Cases of Note
United States v. McKesson Corporation:
We won a complete defense judgment in favor of McKesson after a month-long trial of a qui tam action alleging violations of the False Claims Act and Anti-Kickback Statue. The trial victory allowed McKesson to avoid paying nearly $1 billion in fines, and to avoid the collateral penalties that government agencies can impose on companies found to have paid illegal kickbacks. The Justice Department’s complaint charged McKesson with paying kickbacks to a nursing home operator in the form of underpriced services, and with submitting “legally false claims” to the government. After we had the whistleblower dismissed, a key victory, we then won dismissal of related claims that the nursing home’s supplier subsidiary failed to comply with Medicare supplier standards. With the case’s scope significantly narrowed, we lead our client through a bench trial which featured 24 witnesses, hundreds of exhibits and post-trial briefing. The judge ruled in our client’s favor, vindicating McKesson and its employees. This victory was listed by the National Law Journal as one of the year's five most significant trial wins.
United States v. Genentech Inc. et al. :
We convinced a Massachusetts federal judge to nix a False Claims Act lawsuit against our client Genentech Inc. along with Novartis Pharmaceuticals Corp. The relators accused the companies of off-label marketing and providing kickbacks to sell an asthma drug. The First Circuit affirmed 827 F.3d 5 (1st Cir. 2016)
United States v. U.S. Healthcare Company:
We represented a major United States healthcare company in a federal criminal investigation conducted across multiple jurisdictions by the United States Department of Justice. Ultimately, no charges were filed against our client.
United States v. Biotech Corporation:
The government was attempting to intimidate our client by pursuing parallel criminal and civil False Claims Act claims involving the marketing of a late-stage cancer drug. After we intervened, we received a letter from the U.S. Attorney declining to prosecute, greatly reducing our client’s potential exposure. We continue to defend our client from the civil case.
ConforMIS v. Wright Medical Technology:
We represented plaintiff ConforMIS, the world’s leading designer, developer, and manufacturer of patient-specific knee implants as well as the surgical tools required to best fit those implants into a specific patient’s body. Our client asserted Wright Medical and MicroPort Orthopedics, which manufacture knee and ankle implant systems, infringed four patents that embody fundamental aspects of ConforMIS’s technology. We negotiated an extremely favorable settlement for ConforMIS that includes a significant royalty rate for future sales.
Theravance, Inc. v. GlaxoSmithKline PLC:
On behalf of Theravance, Inc., we quickly resolved disputes between the biopharmaceutical company and GlaxoSmithKline (GSK) concerning a Collaboration Agreement and Strategic Alliance Agreement.
Plaintiff v. Intuitive Surgical, Inc.:
We defended Intuitive Surgical, Inc., a leading manufacturer of cutting-edge robotic surgery devices, from a securities class action. Plaintiffs alleged that Intuitive Surgical issued false and misleading statements regarding the company's financial results and prospects, when during the economic crisis of 2008, its financial results did not meet previously announced predictions. Plaintiffs’ lawyers filed a securities class action, which U.S. District Judge Lucy H. Koh dismissed with leave to amend. Then in a written opinion, Judge Koh agreed with each of our arguments, and dismissed the class action for the second time, this time with prejudice. Finally, the Ninth Circuit unanimously affirmed the dismissal in a 23-page published opinion.
Revance Therapeutics, Inc. v. Medicis Pharmaceutical Corporation:
We represented Revance, a biotechnology company which develops next-generation dermatology products and therapeutic medicines, in a Delaware Chancery Court bench trial. The trial determined Revance’s worldwide rights to its injectable botulinum toxin product, as well as its ground-breaking topical botox product. Days after the trial, we finalized a settlement which returned all global rights to develop and commercialize both products across all indications to Revance, and resolved all outstanding litigation between the companies.
Venture-Backed Biotechnology Company v. Pharmaceutical Company:
We represented a biotechnology company developing a drug for a rare genetic disease in arbitration proceedings over its rights to develop its sole product under a collaboration agreement with a large pharmaceutical company. With our assistance, on the first day of the arbitration the parties reached a favorable settlement, which provided for our client’s acquisition of the life-saving drug it is developing. The FDA has now approved the drug and our client successfully conducted an IPO.
Abbott and Fournier v. Teva, Impax Laboratories, Inc.:
We represented Impax Laboratories, Inc. against Abbott and the French pharmaceutical company Fournier in a plaintiff-side antitrust case that alleged monopolization in a drug market. We led the trial presentation for all of the plaintiffs, and secured a settlement for Impax midway through the trial.
Company Founders v. Majority Shareholder:
We represented the founders of a biofuel start-up in an action brought by its majority shareholder and certain board members as a derivative action for alleged breaches of fiduciary duty. We won a dismissal of the derivative action on demurrer, and achieved a substantial settlement for our clients of their affirmative claims.
In re Budeprion Multidistrict Litigation:
In a multi-district class action, plaintiffs challenged a drug company's product label under California's unfair competition law and Consumer Legal Remedies Act. We settled the case on extremely favorable terms to our client.