The Pennsylvania Superior Court has rejected one pharmaceutical company’s effort to have Goodwin Procter disqualified from representing a rival in a Philadelphia case.
Impax Laboratories had appealed to the Superior Court over Goodwin Procter’s representation of Teva Pharmaceuticals. Teva is suing Impax for indemnification after Teva settled a false advertising case over a drug the two companies worked on together.
According to the court’s Nov. 2 opinion, the Am Law 50 firm previously represented both Teva and Impax in a patent infringement case brought by GlaxoSmithKline. But, the Superior Court said, no evidence from that patent case was substantially related to the indemnity case at hand.
“Any confidential information Goodwin Procter may have received from Impax regarding bioequivalence or the development history of Budeprion XL is not relevant in this action,” Judge Jack Panella wrote for a three-judge panel of the court. “There is no danger that Impax will be denied due process if Goodwin Procter continues to represent Teva in this action.”
According to the opinion, Impax and Teva have a strategic alliance agreement by which Impax develops generic drugs and submits them to the U.S. Food and Drug Administration for approval, and Teva markets those drugs once they are approved. The two companies were co-defendants to a patent infringement claim filed by GSK and Biovail over the generic drug Budeprion XL, a bioequivalent to Wellbutrin XL.
In that case, Teva ultimately settled with GSK on its false advertising claims. Teva then filed a case in the Philadelphia Court of Common Pleas seeking indemnification from Impax under their strategic alliance agreement.
When Teva initially sought indemnification, Impax argued that advertising was solely Teva’s responsibility under the strategic alliance agreement. Once the case was filed, Impax filed a motion to disqualify Goodwin Procter.
The court said it can disqualify an attorney “whose representation constitutes a breach of the duty of confidentiality and loyalty to a former client.”
According to the opinion, GSK took issue with the fact that Teva advertised Budeprion as a bioequivalent to Wellbutrin. Impax argued that the advertising was a duty assigned to Teva, so Impax would not have a duty to indemnify Teva. However, the Superior Court said, Impax had agreed to provide a drug that was bioequivalent, and failed to do so, based on Teva’s allegations, which would mean Impax had breached the agreement.
Any evidence surrounding the bioequivalence question is no longer relevant to determine whether Impax was required to defend Teva from the false advertising suit, the court said.
“Impax argues the development history of Budeprion XL and the data associated with its evasion of the patent are necessarily relevant to Teva’s indemnification claim. We disagree,” Panella wrote.
Senior Judge Eugene Strassburger wrote a brief opinion concurring with the majority’s decision on the disqualification question. He dissented, however, with regard to whether the Superior Court should have considered the question as a collateral order appeal.
David Heim of Bochetto & Lentz, one of the lawyers representing Impax, did not return a call for comment Monday. Walter “Pete” Swayze of Segal McCambridge Singer & Mahoney, one of the attorneys for Teva, also did not return a call seeking comment.
Goodwin Procter declined to comment on the decision.