Morrisey says Pfizer can't appeal remand decision

By John O'Brien | Jun 18, 2013

RICHMOND, Va. – State Attorney General Patrick Morrisey doesn’t think Pfizer Inc. should be allowed to appeal a federal court’s decision to remand his case against it to Mason County.

In an answer to Pfizer’s permission to appeal to the U.S. Court of Appeals for the Fourth Circuit, attorneys for Morrisey’s office argued June 6 that permitting the appeal would upset the jurisdiction granted to federal courts.

Pfizer and Ranbaxy are accused of conspiring to delay introduction of a generic version of Pfizer’s cholesterol-lowering drug Lipitor.

Former Attorney General Darrell McGraw filed the case earlier this year in Mason Circuit Court, but the defendants removed it to U.S. District Court in Huntington.

“Defendants seem to suggest that the matter of federal question jurisdiction can be heard by this court on a pendant basis together with the alleged (Class Action Fairness Act) question… That suggestion fails for two reasons,” the answer says.

“First… CAFA jurisdiction is lacking here, too. Second, even if there was a reviewable CAFA question, Defendants offer no authority for this court to expend appellate review to matters beyond CAFA-related question. In fact, case law in this court suggests the contrary.

“The bar on reviewing a remand order based on subject matter jurisdiction is so strict that it ordinarily extends also to other issues in the order.”

On May 23, the defendants asked for permission to appeal a decision by U.S. District Judge Robert C. Chambers, of the Southern District of West Virginia, that denied their request to have the lawsuit transferred to a multidistrict litigation proceeding in a New Jersey federal court.

“(T)he court concludes that there is no persuasive reason to stay this action pending its possible transfer to federal MDL proceedings,” Chambers wrote May 13.

“After evaluating the merits of the parties’ arguments regarding remand, the court determines that the claims asserted in the complaint do not arise under federal law, nor do they fall within this court’s diversity jurisdiction. Because this court lacks subject matter jurisdiction, Plaintiff’s motion to remand must therefore be granted.”

The complaint says Pfizer fraudulently obtained a second, duplicative patent from the U.S. Patent and Trademark Office and listed it in the U.S. Food and Drug Administration’s Orange Book, filed a sham citizen petition with the FDA to stall approval of the generic Lipitor, embarked on an anticompetitive agreement with Ranbaxy and thwarted efforts to obtain judicial declarations that their patents were invalid.

Attorneys for the defendants noticed the MDL organized in April in a New Jersey federal court over the issue that consists of at least 29 class action lawsuits. They said Morrisey’s case is a “tag-along” and should have been incorporated into the MDL.

The defendants had filed a motion to stay the lawsuit pending a transfer to the MDL. The Judicial Panel on MDL had issued a conditional transfer order that Morrisey objected to.

Chambers refused to impose a stay and addressed the defendants’ claims that the lawsuit belonged in federal court.

The defendants’ claimed the allegations depended on questions of federal patent law and that the Class Action Fairness Act of 2005 allowed removal.

Chambers was not persuaded by any of the defendants’ arguments and looked to a recent decision by the Fourth Circuit in McGraw’s case against CVS Pharmacy, which had made a similar CAFA argument.

The lawsuit is not a class action, and the State is invoking its parens patriae power in pursuing it, Morrisey argued.

Outside counsel hired by McGraw to represent the State are Troy Giatras of Charleston and the Philadelphia firm Levin Fishbein Sedran & Berman.

The reply filed by the defendants June 13 says their petition raises an important, unsettled CAFA-related question – whether the Attorney General’s Office can avoid CAFA jurisdiction by labeling a damages action under the West Virginia Antitrust Act on behalf of the State and a group of citizens as a parens patriae action.

“The federal courts are divided on this question, which is likely to arise every time a state attorney general brings an action under a similar state antitrust statute in the name of the state, but seeks relief for a particular subset of its citizens,” the reply says.

The U.S. Supreme Court will handle the issue when it takes on Mississippi Attorney General Jim Hood’s case against AU Optronics. Pfizer and Ranbaxy have asked the Fourth Circuit to wait on a ruling before it decides its petition for appeal.

From the West Virginia Record: Reach John O’Brien at

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