| Matt Summers
Exemptions & Immunities, Health & Pharmaceuticals
On November 26, 2024, AAI filed an amicus brief in the Third Circuit in support of plaintiffs’ petition for en banc rehearing in In re Merck Mumps Vaccine Antitrust Litigation.
Relying on the Noerr-Pennington doctrine, a Third Circuit panel affirmed a district court’s dismissal of the plaintiffs’ 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 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.
The AAI amicus brief points out that the district court’s decision and the Third Circuit’s previous caselaw granting antitrust 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 en banc rehearing so that the Third Circuit can align its position with the majority view recognizing an independent exception to Noerr-Pennington immunity for such misrepresentations. AAI’s brief explains that the majority view better protects both constitutional rights and consumers. Knowingly false statements to regulatory 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 In re Merck Mumps Vaccine Antitrust Litig.
