Genzyme Corp. v. Shire Human Genetic Therapies, Inc., 906 F. Supp. 2d 9

Genzyme sues Shire HGT and Shire pic under the Lanham Act for false advertising about VPRIV versus Cerezyme.
Shire HGT issued a June 28, 2012 press release alleging VPRIV superiority in Gaucher-related bone disease and disseminated it via PR Newswire and patient organizations.
Genzyme contends the press release contains false and misleading claims about trial analyses and BMD results and likely influenced purchasing decisions.
Shire HGT moves to dismiss under Rule 12(b)(6); Shire pic moves to dismiss for lack of personal jurisdiction under Rule 12(b)(2).
The court denies HGT’s 12(b)(6) motion and grants pic’s 12(b)(2) motion, directing discovery negotiations and scheduling adjustments.
The opinion discusses whether the press release is commercial speech, adequacy of pleading on deception, and whether personal jurisdiction over Shire pic exists.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the press release is commercial speech under Lanham Act	Genzyme argues dissemination with commercial gloss; secondary dissemination can be commercial speech	HGT argues it is scientific speech protected by First Amendment	Yes, potentially commercial speech; Lanham Act claim survives (12(b)(6) denied)
Whether Genzyme adequately pleads deception under the Lanham Act	Genzyme pleads literally false BMD improvements and dissemination to physicians/patients	Defendant contends data may not be literally false and requires fact-intensive inquiry	Sufficiently pled at the pleading stage; Lanham Act claim survives
Whether the court has specific personal jurisdiction over Shire pic	Shire pic purposefully availed itself via disseminating press release and Massachusetts activities	Release was created by Shire HGT; no sufficient minimum contacts by Shire pic; no alter ego shown	No specific jurisdiction over Shire pic; 12(b)(2) granted; cannot impute through alter ego without factors

Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard for pleadings; not mere conclusory allegations)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (requirement of plausible entitlement to relief; not mere conclusory statements)
Gagliardi v. Sullivan, 513 F.3d 301 (1st Cir. 2008) (elements of a Lanham Act false advertising claim; pleading standards)
Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave., 284 F.3d 302 (1st Cir. 2002) (Lanham Act deception elements; presumption of consumer deception at pleadings stage)
Pernod Ricard USA v. Bacardi U.S.A., Inc., 653 F.3d 241 (3d Cir. 2011) (false advertising; misrepresentation must be capable of misleading at pleading stage)
Gordon & Breach Sci. Publ’rs S.A. v. Am. Inst. of Physics, 859 F. Supp. 1521 (S.D.N.Y. 1994) (secondary dissemination of scientific information can be promotional and subject to Lanham Act)
Bracco Diagnostics, Inc. v. Amersham Health, Inc., 627 F. Supp. 2d 384 (D.N.J. 2009) (secondary dissemination of a study can be commercial speech when targeted to customers)
Donatelli v. Nat’l Hockey League, 893 F.2d 459 (1st Cir. 1990) (alter-ego and piercing corporate veil considerations for jurisdiction)
Pleasant St. Univ. v. Baystate Med. Ctr., 960 F.2d 1089 (1st Cir. 1992) (three-part test for establishing specific jurisdiction; purposeful availment)
United States v. Swiss Am. Bank, Ltd., 274 F.3d 610 (1st Cir. 2001) (contextualizes general vs. specific jurisdiction; factors for due process)