Federal Trade Commission v. Boehringer Ingelheim Pharmaceuticals, Inc.
241 F. Supp. 3d 91
D.D.C.2017Background
- FTC subpoenaed Boehringer for documents about litigation and settlement with generic maker Barr to investigate possible anticompetitive reverse-payment or related agreements.
- Boehringer withheld numerous documents asserting work-product and attorney-client privileges; the FTC sought enforcement to compel production.
- District Court (Boehringer I) largely found documents to be opinion work product or privileged and not discoverable; D.C. Circuit (Boehringer II) affirmed in part, reversed in part, and remanded, directing reexamination of fact vs. opinion work product and temporal issues.
- Supreme Court denied certiorari on Boehringer’s challenge; on remand the District Court (Boehringer III) concluded most disputed documents were fact work product and ordered production of non-privileged materials while preserving attorney-client claims.
- Parties cross-appealed; Boehringer moved in the district court for a stay of production pending appeal, arguing likelihood of success and irreparable harm from disclosure.
- The magistrate judge denied the stay, finding Boehringer had low likelihood of success on appeal, adequate post-judgment remedies (including destruction/nonuse orders), and that the balance of harms and public interest did not warrant a stay; but temporarily stayed compliance to allow Boehringer time to seek a stay in the D.C. Circuit.
Issues
| Issue | FTC's Argument | Boehringer's Argument | Held |
|---|---|---|---|
| Whether district court should stay its order compelling production pending appeal | Production should proceed; stay unwarranted | Stay necessary because documents are privileged/work-product and disclosure would cause irreparable harm | Denied: Boehringer failed to show likelihood of success or irreparable harm; limited temporary stay to permit circuit stay application |
| Whether disputed documents are opinion work product and thus protected | Many are fact work product; FTC has substantial need for fact work product | Documents are opinion work product or outside FTC’s substantial-need showing | District court previously found most were fact work product on remand; D.C. Circuit review ongoing (stay motion denied) |
| Whether post-production appellate remedies are adequate to prevent irreparable harm | Yes; courts can order destruction/nonuse and other corrective relief | No; disclosure irreparably taints FTC investigation and cannot be undone | Held adequate remedies exist (citing Mohawk); irreparable harm not shown |
| Whether public interest favors delaying FTC's investigation | Public interest favors enforcement and prompt FTC investigation | Public interest favors protecting privileges and consistent application of privilege law | Court found public interest neutral; enforcement interest weighs against stay |
Key Cases Cited
- Landis v. North American Co., 299 U.S. 248 (power to stay proceedings incidental to court’s control of docket)
- Nken v. Holder, 556 U.S. 418 (standards for stay pending appeal)
- Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (post-judgment appellate remedies can adequately protect privilege)
- In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir.) (post-release review may be inadequate for attorney-client privilege; distinguishes Mohawk)
- Church & Dwight Co., Inc. v. FTC, 756 F. Supp. 2d 81 (D.D.C.) (sliding-scale stay analysis; irreparable harm important)
- Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 259 F.2d 921 (postjudgment remedies weigh against claims of irreparable harm)