ACC and the US Chamber of Commerce filed an amicus curiae brief in the Federal Trade Commission v. Boehringer Ingelheim Pharmaceuticals.
WASHINGTON (June 5, 2017) — The Association of Corporate Counsel (ACC), a global legal association representing more than 42,000 members in 85 countries, and the US Chamber of Commerce, the world's largest business federation representing the interests of 3 million businesses, on Friday filed an amicus curiae brief in Federal Trade Commission v. Boehringer Ingelheim Pharmaceuticals, Inc. In the brief, ACC and the Chamber urged the United States Court of Appeals for the District of Columbia Circuit to reaffirm a lower court's recognition of attorney-client privilege for Boehringer financial documents.
ACC and the Chamber argue that the position taken by the Federal Trade Commission (FTC) inhibits the ability of in-house counsel to serve their corporate clients. In the brief, they state that failing to uphold privilege in this and similar instances would "chill clients' communications with counsel and undermine the provision of legal advice."
At issue are financial analyses related to a settlement agreement and co-promotion agreement between Boehringer and Barr Pharmaceuticals, a generic drug manufacturer. Boehringer and Barr had settled patent infringement claims, with Boehringer's general counsel, Marla Persky, serving as the lead negotiator. The FTC later subpoenaed these documents, claiming the analyses had a business rather than legal purpose. However, a magistrate judge found that 32 of the 42 documents were privileged, stating that even if the documents served some business purpose, they were created to enable the general counsel to provide legal advice.
Central to the amicus argument is the decision in In re Kellogg Brown & Root, Inc., which found that if "obtaining or providing legal advice was one of the significant purposes" of an activity, "the attorney-client privilege applies." The FTC had argued that because Persky was the lead negotiator of business terms in addition to legal terms, the documents were not protected.
"In this case, the FTC takes in-house counsel's greatest strength and attempts to transform it into a liability," the brief states. The argument also notes that "lawyers cannot provide legal advice in a vacuum" and cites past court cases affirming that there is "neither possible nor desirable" to distinguish between legal and non-legal purposes of an in-house lawyer's advice.
"We urge the Court of Appeals to reaffirm the lower court ruling in this case," said Amar Sarwal, ACC vice president and chief legal strategist. "Conducting a misguided and ill-informed ex pose inquiry into the purpose of particular communications would engender confusion and uncertainty, completely undermining the role of in-house counsel in providing effective legal advice."
To read the amicus curiae brief, please visit http://www.acc.com/advocacy/upload/Draft-Brief-of-Amicus-Curiae-FTC-v-Boehringer.pdf.
About ACC: The Association of Corporate Counsel (ACC) is a global legal association that promotes the common professional and business interests of in-house counsel who work for corporations, associations and other organizations through information, education, networking, and advocacy. With more than 42,000 members in 85 countries employed by over 10,000 organizations, ACC connects its members to the people and resources necessary for both personal and professional growth. By in-house counsel, for in-house counsel.® For more information, visit www.acc.com and follow ACC on Twitter: @ACCinhouse.
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