On August 11, 2025, AAI filed an amicus brief in the Supreme Court supporting a petition for certiorari in Chatham Primary Care, P.C. v. Merck & Co. (In re Merck Mumps Vaccine Antitrust Litigation), No. 25-45.
Relying on the Noerr-Pennington doctrine, a Third Circuit panel affirmed a district court’s dismissal of allegations that Merck violated Section 2 of the Sherman Act by misrepresenting the potency of its mumps vaccine on the vaccine’s FDA labelling. As a result of Merck’s alleged false labelling, competing vaccines could not show equivalence and were delayed from entering the market by several years. The district court reasoned that Merck’s labelling representations, even if intentionally false, were government petitioning activity protected by the First Amendment. AAI had filed an amicus brief in support of en banc rehearing in the Third Circuit, but the petition was denied.
In its Supreme Court brief, AAI argues that Third Circuit caselaw granting Noerr-Pennington immunity for knowing misrepresentations to adjudicatory bodies reflects a minority position that has been rejected by every other circuit to consider it. The brief urges the Court to grant certiorari, resolve the circuit split in favor of the other circuits, and formally adopt a misrepresentation exception to Noerr-Pennington that stands apart from the “sham litigation” exception identified in Pro. Real Est. Invs., Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49 (1993).
AAI’s brief explains that the majority view in the circuits better protects both constitutional rights and consumers. Knowingly false statements to adjudicatory bodies harm competition, distort markets, and undermine adjudicatory processes while serving no lawful purpose that could warrant constitutional protection.
The brief was written by Berger Montague Associate Matt Summers, with assistance from Berger Montague Shareholder Josh Davis, Berger Montague Paralegal & Office Manager Connor Rowe, AAI President Randy Stutz, and AAI Vice President & Director of Legal Advocacy Kathleen Bradish.
Read the full brief here: AAI Amicus Brief in Chatham Primary Care, P.C. v. Merck & Co.
