A federal judge in Washington has kept alive a lawsuit from King & Spalding that seeks records from federal enforcement and regulatory agencies about information the firm believes was at the heart of an investigation targeting a pharmaceutical client.
The firm last year sued the U.S. Department of Justice and the U.S. Department of Health & Human Services for records about the government’s investigation of the Massachusetts-based medical device company Abiomed Inc. The Justice Department investigated claims but did not bring any action against Abiomed over the marketing of the heart pump Impella 2.5, the company said in 2015.
Abiomed received some records from federal investigators, but not everything. At issue in the case now: 67 pages of records that, if released to the public, could reveal the identity of an unnamed source who provided information to the government. Justice Department lawyers argued in the Freedom of Information Act lawsuit that disclosure of certain records “would invade the privacy of third parties.”
U.S. District Judge Amit Mehta of the District of Columbia said he can’t rule on the validity of keeping the disputed records secret without first learning the answer to a key question: Is the government’s source an individual or a company? On Wednesday, he asked the lawyers in the case to give him an update by Sept. 22.
Mehta said that if the source is an “entity”—rather than an individual—certain materials can’t be withheld “based solely on the company’s interest in nondisclosure.” He pointed to a U.S. Supreme Court case that said a personal privacy exemption under the Freedom of Information Act does not apply to a corporation.
King & Spalding, the judge wrote, “believes one of Abiomed’s competitors in the pharmaceutical industry, Maquet, may be the government’s anonymous source.”
Mehta said in his ruling: “In this case, the applicability of both exemptions may turn on whether the source that supplied the government with information about Abiomed is an entity or an individual. [King & Spalding] has produced some evidence suggesting that the source may have been persons acting on behalf of one of Abiomed’s rival companies, Maquet.”
In February, King & Spalding partner John Richter argued in court papers that the public interest in how the government makes prosecutorial decisions “easily outweighs the government’s conclusory claim that disclosure would threaten vague privacy interests.”
“Moreover,” he added, “the particular public interest here—the possibility that the government improperly leaked information about a pending grand jury investigation and that a competitor working in conjunction with Wall Street investment analysts and hedge funds used the information to short Abiomed’s stock—dwarfs the vague privacy interest identified by the government.”