Faith S. Hochberg

In this antitrust class action, direct purchasers of Neurontin alleged that Pfizer violated Section 2 of the Sherman Act by engaging in an anti-competitive scheme of illegal off-label promotion of the drug combined with patent litigation to delay generic competition and maintain monopoly prices. Plaintiffs sought in camera review of Pfizer's privileged documents under the crime-fraud exception to attorney-client privilege, asserting that the documents would show the patent suits were part of a profit-protection scheme and that Pfizer made misrepresentations to courts about its off-label activities. The court outlined the Third Circuit's two-step framework: a lenient good-faith factual basis for in camera inspection followed by a prima facie showing that the client was committing or intending a fraud or crime and that the communications furthered it. Applying this standard, the court held that plaintiffs had not met the threshold for documents concerning the filing and prosecution of the '479 patent litigation but had established a sufficient basis regarding alleged misrepresentations to the court about the timing and extent of illegal promotion, warranting in camera review of those materials.

business & regulatoryprocedure

This case is a patent infringement action brought by Warner-Lambert, the maker of brand-name Neurontin (gabapentin), against generic manufacturers Teva, IVAX, and Eon over U.S. Patent No. 6,054,482, which covers a low-lactam manufacturing process for the epilepsy drug. The opinion addresses Warner-Lambert’s motion to strike the defendants’ affirmative defenses of patent misuse and unclean hands under Fed. R. Civ. P. 12(f). The court explains the history of multiple gabapentin patents, Orange Book listings, and the five-year prosecution delay of the ’482 Patent, then analyzes whether that delay can support a misuse defense by reference to policy principles in Woodbridge v. United States while distinguishing the disfavored doctrine of prosecution laches. It concludes that the unclean-hands allegations lack the required connection to the infringement claims at issue.

business & regulatoryprocedurehealthcare

This case concerns Warner-Lambert's motion under Rules 12(b)(6) and 12(f) to strike Purepac's affirmative defenses of patent misuse and unclean hands and to dismiss its counterclaims for monopolization, attempted monopolization, and unfair competition in ongoing gabapentin patent infringement litigation. The court denied the motion. It held that Purepac sufficiently alleged an overall scheme by Warner-Lambert to delay generic entry through withholding prior art from the PTO, false Orange Book certifications for the '476 and '479 patents, and filing objectively baseless infringement suits, which could qualify as a pattern of sham litigation outside Noerr-Pennington protection.

business & regulatoryhealthcare

This case is a proposed nationwide class action brought by plaintiff Michael Coppolino against Total Call International, Inc., a seller of prepaid calling cards, alleging that the company violated consumer protection laws and was unjustly enriched by failing to clearly disclose various fees, charges, and billing decrements that reduced the cards' value. Defendant moved to dismiss on res judicata grounds, arguing that a prior Tennessee class action settlement (Lopez) that released claims arising from the sale of prepaid calling cards during the class period barred the present suit. The court examined whether the Tennessee Consent Decree's release applied, considering differences in the claims asserted, the adequacy of notice provided to class members (including the lack of opt-out information and limited publication), and the fairness of the settlement terms, which awarded no monetary relief to class members while directing most funds to cy pres recipients and attorneys. The court noted deficiencies in the Lopez notice and settlement structure, including that it was published only in English and provided no direct benefit to class members, and concluded that these issues raised due process concerns preventing the prior judgment from extinguishing the current claims for damages.

procedurebusiness & regulatory

This case involves a commercial dispute in which International Flavors & Fragrances (IFF) purchased paprika from McCormick that was later found to be infested with cigarette beetles, allegedly contaminating IFF's barbeque seasoning product and causing economic losses including costs to source replacements for a customer. IFF sued for breach of express and implied warranties, products liability, and fraudulent concealment. McCormick moved for partial summary judgment on the products liability and fraud claims. The court analyzed whether the economic loss doctrine under New Jersey or Texas law bars the tort-based claims in this contractual setting between commercial parties, focusing on whether purely economic damages from defective goods can be recovered in tort or must be pursued under warranty and contract theories.

business & regulatorytorts & liability

The case concerned former members of a merged electrical workers union local who held vested rights under a predecessor pension plan to elect lump-sum retirement benefits; after the merger of the locals and their plans, the surviving welfare plan was amended to eliminate medical benefits for any participant who chose the lump-sum pension option. Plaintiffs sued the merged plans and trustees, alleging that the amendment violated ERISA’s anti-cutback rule by diminishing accrued pension rights. Following a bench trial, the court found that the lump-sum election right had accrued and vested before the merger and that conditioning welfare eligibility on forgoing that right amounted to an impermissible reduction of pension benefits. The court rejected the defense that the change was merely to the non-vested welfare plan, holding that the practical effect on the pension benefit controlled under ERISA.

labor & employment

This case involved class action claims by insureds against Health Net, a health insurer, alleging that the company improperly used third-party Ingenix databases to determine "usual, customary, and reasonable" reimbursement rates for out-of-network medical services, thereby underpaying benefits in violation of ERISA. After seven years of extensive litigation, the parties reached a settlement that includes monetary payments to class members and changes to Health Net's business practices for calculating reimbursements. The court approved the settlement agreement, the plan of allocation, and an award of attorneys' fees and expenses, finding the settlement fair and reasonable following fairness hearings and notice to class members.

healthcarebusiness & regulatoryprocedure

This case consists of class actions by parents of daughters with eating disorders against Horizon Blue Cross Blue Shield of New Jersey and the Magellan defendants, who administered mental health benefits. The plaintiffs allege that Horizon improperly classified eating disorders as non-biologically based mental illnesses under the terms of their ERISA and non-ERISA health insurance policies, thereby denying or limiting coverage in a manner inconsistent with the New Jersey Mental Health Parity Law and policy language that covers biologically based mental illnesses at parity with other conditions. Horizon and Magellan moved to dismiss the complaints, raising challenges to subject matter jurisdiction under ERISA § 502 and the Class Action Fairness Act, including the application of CAFA's local controversy and home state exceptions, as well as issues related to the bankruptcy of certain Magellan entities. The court examined the policy definitions of biologically based and non-biologically based mental illnesses, noted that certain plaintiffs exhausted limited non-BBMI benefits while others were denied coverage on medical necessity grounds intertwined with the classification, and determined that jurisdictional facts such as the amount in controversy and class member residency required additional discovery before resolving the motions.

healthcarebusiness & regulatory

This case consists of two class action complaints against Volkswagen entities alleging that certain vehicle models contained design defects in pollen filters, drains, and related components that caused interior flooding and damage to transmissions and other parts. Plaintiffs asserted claims for breach of express and implied warranties, violation of the New Jersey Consumer Fraud Act, negligent misrepresentation, fraud, and related causes of action. The court considered motions to dismiss under Rule 12(b)(6) and motions to quash service of process on foreign defendants Volkswagen AG, Audi AG, and Volkswagen De Mexico. The opinion grants the motions in part and denies them in part, addressing issues including the sufficiency of service through a domestic subsidiary's agent, the scope of express warranties, privity requirements for certain claims under state law, and statutes of limitations.

proceduretorts & liability

This case involves federal criminal charges against Defendant Schiff for conspiracy and substantive violations based on alleged misstatements and omissions about Bristol-Myers Squibb's business performance in analyst calls and SEC filings, after accounting-related claims were removed by stipulation. The court ruled on motions to exclude one theory of omission liability for SEC filings and on the admissibility of expert testimony under Daubert standards, as well as evidence of stock price drops. It dismissed the challenged omission liability theory tied to SEC filings while preserving other theories of conspiracy, misrepresentation, aiding and abetting, and scheme liability for trial. The court required expert testimony for certain stock price evidence due to multiple disclosures in the case and reserved judgment on narrower admissibility issues pending trial evidence. Remaining claims were set to proceed to trial on schedule.

criminal lawbusiness & regulatoryprocedure

The case concerned two New Jersey residents whose ERISA-governed Aetna insurance policies limited coverage for treatment of non-biologically based mental illnesses; plaintiffs alleged that Aetna wrongly classified their daughters' eating disorders as non-BBMIs, resulting in denials or cutoffs of benefits for medically necessary care, and asserted claims for breach of contract and fiduciary duty. Defendants moved to dismiss, arguing for Burford abstention, ERISA preemption of state-law claims under New Jersey's Mental Health Parity Law, and failure to exhaust internal appeals. The court rejected abstention, held that the policies' definitions and the question of proper classification presented plausible ERISA claims not subject to dismissal at the pleading stage, and found that exhaustion defenses were better addressed after discovery rather than on a motion to dismiss.

healthcareprocedurefederal power

The case concerned an employee's claim for benefits under an ERISA-governed Displacement Program after his long-time employer sold his division to another company and he was terminated the same morning as part of a reduction in force that the original employer had planned before the sale. The court granted the plaintiff's motion for partial summary judgment on his entitlement to plan benefits and denied the defendant's motion for summary judgment. It held that the sale-of-business exception did not apply because the termination decision was made by the Mellon subsidiary prior to the transfer, so the employee had not received qualifying continued employment. The court dismissed the remaining counts as moot or preempted by ERISA to the extent they asserted state-law claims.

labor & employmentbusiness & regulatory

The case concerned a New Jersey medical provider's state-court promissory estoppel suit against Horizon Blue Cross/Blue Shield over Horizon's attempt to recover an allegedly mistaken $24,279 payment for surgery performed on a federal employee's dependent; Horizon had initially pre-certified and paid for the procedure but later determined Medicare was primary and offset the amount against other reimbursements owed to the provider. Horizon removed the action to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), asserting that its administration of the Federal Employees Health Benefits Act (FEHBA) Service Benefit Plan placed it under the direct control of the federal Office of Personnel Management. After ordering supplemental briefing, the court concluded it lacked subject matter jurisdiction because Horizon's challenged conduct—seeking repayment after the fact—was not taken pursuant to OPM's direct and detailed control or the terms of the governing Master Contract, which instead required pre-payment verification of primary coverage. The court therefore remanded the matter to New Jersey Superior Court, Bergen County.

procedurefederal powerhealthcare

The case involved direct purchasers of the antidepressant mirtazapine (Remeron) bringing antitrust claims against manufacturer Organon, alleging an overall scheme to monopolize the market by obtaining a follow-on patent, improperly listing it in the FDA Orange Book, filing lawsuits against generic competitors, and deliberately delaying the listing of the patent to extend exclusivity after the original patent expired. The court addressed Organon's motion to dismiss the claims under Fed. R. Civ. P. 12(b)(6). The court held that the plaintiffs' late-listing claim was not precluded by prior rulings on related listing issues and could proceed, reasoning that the Hatch-Waxman Act and FDA regulations created a regulatory structure where delayed listing could potentially support an antitrust violation even if individual components did not.

business & regulatoryhealthcare

This case involves a class action by purchasers of Bradley Pharmaceuticals common stock alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act and Rule 10b-5. Plaintiffs claimed the company and its executives made false statements in an October 2004 press release and Form 10-Q by reporting a $1 million Deconamine sale as revenue for the third quarter of 2004, when the transaction was allegedly a sham designed only to inflate earnings and was later restated downward by over $1 million after an SEC inquiry. The court denied the defendants' motion to dismiss under Fed. R. Civ. P. 9(b), 12(b)(6), and the PSLRA, holding that the complaint pleaded the statements with particularity, adequately alleged scienter based on the defendants' direct involvement in preparing the reports and access to contrary facts, and sufficiently stated control-person liability.

business & regulatory

This case involves a dispute between residential homeowners in Piscataway, New Jersey, and energy companies Duke Energy and Texas Eastern over three natural gas pipelines running beneath a street easement. The companies sought to remove mature trees growing on the easement to facilitate aerial and ground inspections, citing their standard operating procedures, while the homeowners argued that the 1944, 1960, and 1963 easement grants did not authorize tree removal and that no federal safety regulations required it. The court granted the plaintiffs' motion for summary judgment, holding that the easement language only permits operation, inspection, and maintenance of the pipelines without interference to cultivation and does not extend to cutting trees that have existed for over forty years without causing any documented damage or regulatory violations.

propertybusiness & regulatory

This case involves direct purchasers of the antidepressant mirtazapine (Remeron) suing the manufacturer Organon for alleged antitrust violations under the Sherman Act. Plaintiffs claimed that Organon improperly delayed listing a newly issued patent on a drug combination in the FDA's Orange Book, which delayed generic competitors' Abbreviated New Drug Applications and extended Organon's monopoly, resulting in higher prices; they also alleged an overall monopolization scheme. The court addressed cross-motions for summary judgment, focusing on whether plaintiffs could prove monopoly power through direct evidence such as Organon's pricing above marginal cost, lost sales after generic entry, and expert testimony. The court concluded that this evidence was insufficient as a matter of law because it did not adequately address factors like price relative to total costs or output restrictions, and thus could not establish monopoly power or support the monopolization claims based on the direct-evidence approach.

business & regulatoryhealthcare

In Thomas v. Ferguson, a detainee at New Jersey's Special Treatment Unit for sexually violent predators brought a pro se § 1983 action alleging that two senior corrections officers used excessive force during a July 2002 altercation, violating his Eighth Amendment rights. The officers moved for summary judgment after the plaintiff had been handcuffed and treated for minor facial injuries following the incident, in which the officers themselves sustained documented injuries. The District Court granted the motion, concluding that the record contained no evidence the force was applied maliciously and sadistically to cause harm rather than in a good-faith effort to restore order, and therefore no constitutional violation occurred under the applicable standard. The court noted that any remaining disputes of fact were immaterial to the Eighth Amendment claim.

civil rightscriminal law

This case arose from plaintiff Angelo Cataldo's termination from his position as Civil Division Manager for the Superior Court of New Jersey, Bergen Vicinage, and involved claims against the Assignment Judge and other court employees. The district court reviewed appeals from magistrate judge rulings that denied reopening discovery after the close of a 14-month period, granted summary judgment on federal claims including age discrimination and equal protection violations, and dismissed state tort claims for failure to satisfy notice requirements under the New Jersey Tort Claims Act. The court applied a clearly erroneous standard to affirm the denial of additional discovery, adopted the recommendation of summary judgment on the federal claims, and declined to vacate the prior dismissal of the state claims. Core reasoning centered on procedural defaults, lack of timely evidence to reopen discovery, and statutory prerequisites for suits against public employees.

civil rightslabor & employmentproceduretorts & liability

This case involves a trademark infringement dispute under the Lanham Act in which New Jersey-based plaintiff Ameripay, LLC alleged that Illinois-based defendant Ameripay Payroll, Ltd. infringed its AMERIPAY mark by registering and using the ameripay.com domain name for payroll services. The defendant moved to dismiss for lack of personal jurisdiction or, alternatively, to transfer venue. The court analyzed specific jurisdiction, finding that the defendant's passive and interactive website features, limited New Jersey tax filings on behalf of out-of-state clients, and single email contact did not constitute minimum contacts or purposeful availment sufficient to support jurisdiction in New Jersey. Because jurisdiction was lacking, the court transferred the case to the Northern District of Illinois.

procedurebusiness & regulatory