Opposition Brief — Menorah Mivtachim Insurance Ltd., et al., Petitioners v. John D. Sheehan, et al.
Supreme Court briefSep 20, 2024
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No. 24-188
In the
Supreme Court of the United States
MENORAH MIVTACHIM INSURANCE LTD., et al.,
Petitioners,
v.
JOHN D. SHEEHAN, et al.,
Respondents.
On Petition for a Writ of Certiorari to the United
States Court of A ppeals for the Second Circuit
BRIEF IN OPPOSITION
Lenard Barrett Boss
Cozen O’Connor P.C.
Three World Trade Center
175 Greenwich Street,
55th Floor
New York, New York 10007
Counsel for
Respondent James Nesta
332613
David R. Marriott
Counsel of Record
Cravath, Swaine & Moore LLP
Two Manhattan West
New York, New York 10001
(212) 474-1000
dmarriott@cravath.com
Counsel for Respondents
Mylan N.V. and Mylan Inc.,
Heather Bresch, Paul B.
Campbell, Robert J. Coury,
Rajiv Malik, Kenneth S.
Parks and John D. Sheehan
A
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
1.
Whether the Second Circuit Court of Appeals and
the district court adequately set out their reasons
for dismissing and/or affirming the dismissal of
Petitioners’ claims by clearly describing them in
written decisions.
2.
Whether the Second Circuit Court of Appeals and
the district court properly rejected Petitioners’
generic drug claims for failure to adduce adequate
evidence of loss causation, where Petitioners failed
to disaggregate losses caused by changed economic
circumstances, changed investor expectations, new
industry-specific or firm-specific facts, conditions or
other events, from disclosures of the truth behind the
alleged misstatements.
ii
CORPORATE DISCLOSURE STATEMENT
Pursuant to Supreme Court Rule 29.6, Respondents
state the following: Mylan Inc. is a wholly owned
subsidiary of Viatris Inc., a publicly held corporation.
Mylan N.V. was formerly the parent company of Mylan
Inc. but ceased to exist upon the closing of a business
combination of Mylan N.V. and Upjohn Inc., which resulted
in the creation of Viatris Inc. Viatris Inc. does not have
a corporate parent and no publicly held corporation owns
10% or more of its stock.
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
CORPORATE DISCLOSURE STATEMENT . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 1
A. The Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. This Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C. Petitioners’ Claims . . . . . . . . . . . . . . . . . . . . . . . . . 3
D. Summary Judgment Decision . . . . . . . . . . . . . . . 5
E. The Second Circuit Appeal . . . . . . . . . . . . . . . . . 5
F.
The Second Circuit Decisions . . . . . . . . . . . . . . . . 7
REASONS FOR DENYING THE PETITION . . . . . . 7
I.
THE SECOND CIRCUIT PROPERLY
A FFIRMED THE DISMISSA L OF
PETITIONERS’ MDRP CLAIM BASED
UPON A CLEAR EXPLANATION OF THE
FLAWS IN PETITIONERS’ CASE . . . . . . . . . 9
iv
Table of Contents
Page
A. Nothing About Rule 56(a) Requires
Clarification . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. T h e L o w e r C o u r t s E x p l a i n e d
Their Rejection of the Rebate-Rate
Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
C. T h e L o w e r C o u r t s E x p l a i n e d
Their Rejection of the Government
Investigation Claim . . . . . . . . . . . . . . . . . . . 13
II. THE SECOND CIRCUIT PROPERLY
REJECTED PETITIONERS’ CLAIMS
FOR FA ILU RE TO PROV E LOS S
CAUSATION, THE STANDARD FOR
WHICH IS CLEAR . . . . . . . . . . . . . . . . . . . . . . 15
A. The Law of Loss Causation Is Clear . . . . . 16
B. The District Court and the Second
Circuit Properly Rejected Petitioners’
Generic Drug Claims for Failure To
Show Loss Causation . . . . . . . . . . . . . . . . . . 18
III. PET I T ION ER S M I S S TAT E T H E
IMPLICATIONS OF THE SECOND
CIRCUIT’S DECISION AND THE NEED
FOR FURTHER REVIEW . . . . . . . . . . . . . . . . 25
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
v
TABLE OF CITED AUTHORITIES
Page
CASES
Ark. Pub. Emps. Ret. Sys. v.
Harman Int’l Indus. Inc. (In re Harman Int’l
Indus., Inc. Sec. Litig.),
791 F.3d 90 (D.C. Cir. 2015) . . . . . . . . . . . . . . . . . 17, 18
Bricklayers & Trowel Trades Int’l Pension Fund
v. Credit Suisse Sec. (USA) LLC,
752 F.3d 82 (1st Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . 17
Casciani v. Nesbitt,
392 F. App’x 887 (2d Cir. 2010) . . . . . . . . . . . . . . . . . 21
Catogas v. Cyberonics, Inc.,
292 F. App’x 311 (5th Cir. 2008) . . . . . . . . . . . . . . . . . 17
Certain Underwriters at Lloyd’s v.
Axon Pressure Prods.,
951 F.3d 248 (5th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 10
D’Onofrio v. Vacation Publ’ns, Inc.,
888 F.3d 197 (5th Cir. 2018) . . . . . . . . . . . . . . . . . . . . 10
D.E. & J. Ltd. P’ship v. Conaway,
133 F. App’x 994 (6th Cir. 2005) . . . . . . . . . . . . . . . . 17
Dura Pharms., Inc. v. Broudo,
544 U.S. 336 (2005) . . . . . . . . . . . . . . . . . . . . . . . . 16, 17
vi
Cited Authorities
Page
Glaser v. Enzo Biochem, Inc.,
464 F.3d 474 (4th Cir. 2006) . . . . . . . . . . . . . . . . . . . . 17
In re EpiPen (Epinephrine Injection, USP)
Mktg., Sales Pracs. & Antitrust Litig.,
44 F.4th 959 (10th Cir. 2022),
cert. denied sub nom. Sanofi-Aventis U.S., LLC v.
Mylan, Inc., 143 S. Ct. 1748 (2023) . . . . . . . . . . . . . . . 5
In re EpiPen (Epinephrine Injection, USP)
Mktg., Sales Pracs. & Antitrust Litig.,
No. 17-MD-2785-DDCTJJ,
2021 WL 2585065 (D. Kan. June 23, 2021) . . . . . . . . 5
In re EpiPen (Epinephrine Injection, USP)
Mktg., Sales Pracs. & Antitrust Litig.,
507 F. Supp. 3d 1289 (D. Kan. 2020) . . . . . . . . . . . . . . 5
In re Flag Telecom Holdings, Ltd. Sec. Litig.,
574 F.3d 29 (2d Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . 17
In re Mylan N.V. Sec. Litig.,
666 F. Supp. 3d 266 (S.D.N.Y. 2023) . . . . . . . . . . . . . 25
In re Mylan N.V. Sec. Litig.,
No. 16-CV-7926 (JPO), 2020 WL 1673811
(S.D.N.Y. Apr. 6, 2020) . . . . . . . . . . . . . . . . . . . . . . . . 25
In re Omnicom Grp., Inc. Sec. Litig.,
597 F.3d 501 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . 26
vii
Cited Authorities
Page
In re Williams Sec. Litig. - WCG Subclass,
558 F.3d 1130 (10th Cir. 2009) . . . . . . . . . . . . . . . 20, 25
Jackson v. Fed. Express,
766 F.3d 189 (2d Cir. 2014) . . . . . . . . . . . . . . . . . . . . . 17
Lentell v. Merrill Lynch & Co.,
396 F.3d 161 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 10
McCabe v. Ernst & Young, LLP,
494 F.3d 418 (3d Cir. 2007) . . . . . . . . . . . . . . . . . . 16, 17
MacPhee v. MiMedx Grp., Inc.,
73 F.4th 1220 (11th Cir. 2023) . . . . . . . . . . . . . . . . . . 17
Nuveen Mun. High Income
Opportunity Fund v. City of Alameda,
730 F.3d 1111 (9th Cir. 2013) . . . . . . . . . . . . . . . . . . . 17
Ont. Tchrs.’ Pension Plan Bd. v.
Teva Pharm. Indus. Ltd.,
432 F. Supp. 3d 131 (D. Conn. 2019) . . . . . . . . . . . . . 16
Rand-Heart of N.Y., Inc. v. Dolan,
812 F.3d 1172 (8th Cir. 2016) . . . . . . . . . . . . . . . . . . . 17
Ray v. Citigroup Glob. Mkts.,
482 F.3d 991 (7th Cir. 2007) . . . . . . . . . . . . . . . . . . . . 17
viii
Cited Authorities
Page
STATUTES & RULES
15 U.S.C. § 78u-4(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
42 U.S.C. § 1396r-8(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12
Fed. R. Civ. P. 56(a) . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 9, 10
Local Rule 32.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SEC Rule 10b-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 20
Private Securities Litigation Reform Act of 1995 . . . . 16
Securities Exchange Act of 1934, § 10(b) . . . . . . . . . . . . 3
Securities Exchange Act of 1934, § 14(e) . . . . . . . . . . . . . 3
Securities Exchange Act of 1934, § 20(a) . . . . . . . . . . . . 3
Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
1
STATEMENT OF THE CASE
This is a securities case in which Petitioners cobbled
together allegations from other lawsuits and investigations
and dressed them up as claims for securities fraud. After
the case was substantially narrowed through the dismissal
of other unsupported allegations, the crux of the case
that went forward was that Mylan N.V. and Mylan Inc.
(collectively, “Mylan”) (and certain officers and employees)
allegedly failed to disclose to shareholders that the
company offered anticompetitive rebates on the EpiPen,
classified it incorrectly for purposes of Medicaid rebates,
and fixed prices and allocated markets for certain generic
drugs—thus inflating artificially the price of Mylan’s
stock. Petitioners survived several motions to dismiss
after three amendments based on the promise that their
allegations would be supported by confidential witnesses
and evidence from a pending criminal investigation.
That never happened.
After nearly seven years of litigation, Petitioners’
purported confidential witnesses never materialized,
and an industry-wide criminal investigation by the U.S.
Department of Justice involving generic drug pricing
(“DOJ Generic Pricing Investigation”) never resulted
in any charges against Mylan. On the contrary, the
undisputed evidence showed that Mylan’s rebates were
pro-competitive, the EpiPen was properly classified
for Medicaid purposes, and Mylan acted independently
(not as part of a cartel) in marketing and selling its
generic drug products. Thus, the district court properly
found Petitioners’ allegations to lack support and
entered summary judgment in favor of Respondents.
2
The Second Circuit affirmed the district court’s
decision and denied Petitioners’ request for a rehearing
and a rehearing en banc.
Although they abandoned the bulk of their case by not
appealing significant parts of the district court’s ruling,
Petitioners now seek to conjure up “cert-worthy” issues
for review by this Court. They claim that both the district
court and the Second Circuit: (1) failed to explain adequately
their dismissal of two aspects of Petitioners’ Medicaidrelated claims (what Petitioners call their “Rebate-Rate
Claims” and their “Government Investigation Claims”);
and (2) applied an overly demanding standard in finding
that Petitioners failed to adduce adequate evidence of
loss causation concerning their allegations of price-fixing
and market allocation in the generic pharmaceutical drug
industry (the “Generic Drug Claims”). According to
Petitioners, the lower courts require guidance on these
issues. In fact, the law is clear on both points: the district
court and the Second Circuit explained their reasons for
rejecting Petitioners’ claims; and the lower courts properly
applied the law concerning loss causation. Petitioners’
application for certiorari should be denied.
A.
The Parties
During the relevant period (February 21, 2012 to
May 24, 2019, both dates inclusive), Mylan N.V. was a
publicly traded company. Mylan entities develop, license,
manufacture, market and distribute brand-name and
generic pharmaceuticals worldwide. (A-103 ¶ 4.)1 These
1. Citations to the Deferred Joint Appendix filed in the
Appeal below are designated “A-_ _” with appropriate page
references.
3
products include EpiPen, as well as thousands of generic
drugs. (A-103-104 ¶¶ 6-8.) The Individual Respondents
are Heather Bresch, Paul Campbell, Robert Coury, Rajiv
Malik, Kenneth Parks, John Sheehan and James Nesta.
(A-104-111 ¶¶ 9-47.) Petitioners are purchasers of Mylan
common stock between February 21, 2012 and May 24,
2019. (A-102-103 ¶ 3.)
B. This Litigation
Petitioners filed four complaints from March 20,
2017 to June 17, 2019, culminating in the Third Amended
Complaint (the “TAC”). The TAC asserts claims under
§§ 10(b), 14(e) and 20(a) of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder. (TAC ¶ 30.)
Petitioners crafted the TAC by copying allegations
from three sets of non-securities litigations and/or
investigations: (1) litigation accusing Mylan of misconduct
in the sale of EpiPen, an auto-injector used to deliver
epinephrine (the “EpiPen Antitrust Claims”); (2) a DOJ
investigation concerning the classification of EpiPen for
purposes of the Medicaid Drug Rebate Program (“MDRP”
and the “MDRP Claims”); and (3) litigation/investigations
concerning the Generic Drug Claims. (App. 11a-12a.)2
C.
Petitioners’ Claims
Petitioners claimed that Respondents made statements
explaining the market, regulatory risk and Mylan’s income
that were materially misleading because Mylan did not
2. Citations to Petitioners’ Appendix are designated “App.__”
with appropriate page references.
4
disclose the alleged misconduct underlying each of the
EpiPen Antitrust Claims, MDRP Claims or Generic Drug
Claims. (TAC ¶¶ 5-29.)
Petitioners’ EpiPen A ntitrust Claims alleged
that what Mylan said was materially misleading
because it failed to disclose that the company offered
rebates on EpiPen as part of an unlawful scheme
to exclude a competing product from the market.
(Id. ¶¶ 12-14.) Petitioners also alleged Mylan engaged in
anticompetitive conduct by imposing vertical restraints
on pharmacy benefit managers (“PBMs”), and by bribing
PBMs to eliminate a competitor. (A-325-326.)
Petitioners’ MDRP Claims were predicated primarily
on allegations that Mylan knowingly misclassified EpiPen
as an “N Drug”. (TAC ¶ 70.) The MDRP requires drug
manufacturers to pay rebates to Medicaid, depending upon
a drug’s classification: rebates for so-called “S Drugs”
and “I Drugs” are higher than rebates for N Drugs.
42 U.S.C. § 1396r-8(c). Petitioners also alleged that
Mylan misrepresented that: (1) EpiPen was rebated at
23% Average Manufacturer’s Price (“AMP”) (instead of
13% AMP, the rate at which N Drugs are rebated), (2) a
governmental agency had not taken a position contrary
to Mylan’s on EpiPen’s classification and (3) a government
investigation was not in progress. (TAC ¶¶ 88-94; Dkt.
350 at 1-2.)
Petitioners’ Generic Drug Claims were based on
allegations that Mylan entered into agreements with its
competitors to allocate the markets for six generic drugs
(A-371) and to fix the list prices of 14 others (A-388).
5
D.
Summary Judgment Decision
Following class certification and extensive discovery,
Respondents moved for summary judgment on all of
Petitioners’ claims. Petitioners cross-moved for partial
summary judgment as to elements of their MDRP Claims.
On March 30, 2023, the district court entered an order
granting Respondents’ motion and denying Petitioners’
motion (the “Summary Judgment Ruling”). (App. 111a.)
The court followed four other federal judges in rejecting
Petitioners’ EpiPen Antitrust Claims, 3 acknowledged
that multiple government agencies had found EpiPen was
properly classified under the MDRP and found Petitioners’
Generic Drug Claims to be unsupported.
E. The Second Circuit Appeal
Petitioners did not appeal the portion of the Summary
Judgment Ruling dismissing their EpiPen Antitrust Claims.
They also did not appeal the dismissal of their primary
MDRP Claim: that Mylan knowingly misclassified EpiPen.
(Appeal Op. Br. 19 n.14.)4 And they did not appeal their
3. In re EpiPen (Epinephrine Injection, USP) Mktg., Sales
Pracs. & Antitrust Litig., 507 F. Supp. 3d 1289 (D. Kan. 2020);
In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs.
& Antitrust Litig., No. 17-MD-2785-DDCTJJ, 2021 WL 2585065
(D. Kan. June 23, 2021); In re EpiPen (Epinephrine Injection,
USP) Mktg., Sales Pracs. & Antitrust Litig., 44 F.4th 959 (10th
Cir. 2022), cert. denied sub nom. Sanofi-Aventis U. S., LLC v.
Mylan, Inc., 143 S. Ct. 1748, 215 L. Ed. 2d 649 (2023).
4. Citations to the Petitioners’ Opening Brief filed in the
Appeal below are designated “Appeal Op. Br. __” with appropriate
page references.
6
primary claims against the Individual Respondents;
Petitioners made no specific mention of their primary
claims against any particular Individual Respondent.
Petitioners purported to appeal the portion of the
Summary Judgment Ruling rejecting the remaining
MDRP Claims (those as to which Petitioners crossmoved for summary judgment) for failure to show falsity
and materiality. (Id. 17-25.) But they did not appeal the
district court’s holding that Petitioners failed to adduce
evidence sufficient to prove scienter as to these claims,
a failure that was independently dispositive, foreclosing
altogether Petitioners’ appeal of their MDRP Claims. (Id.
24-25; App. 59a-75a.)
Petitioners also appealed the dismissal of the Generic
Drug Claims. However, their arguments as to these
claims (and their MDRP Claims) misstated the district
court’s ruling, misrepresented the undisputed evidence
and ignored alternative grounds for affirmance. (Appeal
Op. Br. 25-56.)
Finally, Petitioners appealed the dismissal of their
Section 20(a) claims but rested it entirely on their mistaken
arguments regarding primary liability; they failed to
mention the undisputed evidence that the Individual
Respondents acted in good faith. (Id. 62.) Indeed, they
failed to mention most of the Individual Respondents at all.
The Second Circuit held oral argument on Petitioners’
appeal on March 14, 2024. Both sides presented argument
(and the Second Circuit asked questions) on the issues
Petitioners now claim the Second Circuit ignored.
7
F.
The Second Circuit Decisions
In an order dated April 15, 2024, the Second Circuit
affirmed the district court’s decision. (App. 1a.) With
respect to Petitioners’ MDRP Claims, the Second Circuit
concluded that “[t]he district court expressly considered
each of the alleged misstatements underlying the MDRP
Claims and concluded that Appellants failed to adduce
sufficient evidence of scienter on any of them. Accordingly,
by failing to adequately brief scienter, Appellants have
waived any challenge to the district court’s rulings on
that issue”. (Id. 4a-5a.)
With respect to Petitioners’ Generic Drug Claims,
the Second Circuit (like the district court) concluded that
Petitioners had failed to demonstrate loss causation. The
Second Circuit also agreed with the district court “that
Appellants failed to disaggregate the losses caused by
Mylan’s alleged agreements to allocate markets and
fix prices of specific generic drugs from losses caused
by negative news relating to Mylan, generic drugs, and
antitrust generally”. (Id. 6a.)
Petitioners sought a panel rehearing or, in the
alternative, a rehearing en banc. On May 20, 2024, the
Second Circuit denied Petitioners’ request. (Id. 112a.)
REASONS FOR DENYING THE PETITION
Nothing in Petitioners’ application justifies the
granting of a writ of certiorari. Contrary to their
contention, there is no uncertainty about what a district
court should do in deciding a motion for summary
judgment. Rule 56(a) expressly provides that, when a
8
court decides a summary judgment motion, the court
should state on the record the reason for granting or
denying the motion. Fed. R. Civ. P. 56(a). That is exactly
what the district court did here, as the Second Circuit
recognized in rejecting Petitioners’ argument that the
district court failed to provide a rationale for its decision.
Petitioners’ contention that there is a significant need
for guidance from this Court on the standard for loss
causation is similarly without merit. There is no question
that loss causation is an essential element of Petitioners’
claim. Nor is there any question that a plaintiff must
disaggregate those losses caused by changed economic
circumstances, changed investor expectations, new
industry-specific or firm-specific facts, conditions or other
events, from disclosures of the truth behind the alleged
misstatements. The Second Circuit properly found that
Petitioners failed adequately to disaggregate.
Finally, Petitioners contend that the Second Circuit’s
decision “has far reaching implications which must be
addressed”. (Br. 21.) That is simply not true. The Second
Circuit resolved the case in a summary order that by
definition lacks precedential effect. Moreover, its order
does not: (1) decide any question of federal law that has not
been, but should be, settled by this Court; (2) so far depart
from the accepted usual course of judicial proceedings, or
sanction such a departure by the district court, as to call
for an exercise of this Court’s supervisory power; or (3)
decide an important federal question in a way that conflicts
with relevant decisions of this Court.
9
I.
THE SECOND CIRCUIT PROPERLY AFFIRMED
THE DISMISSAL OF PETITIONERS’ MDRP
CLAIM BASED UPON A CLEAR EXPLANATION
OF THE FLAWS IN PETITIONERS’ CASE
Contrary to Petitioners’ contention, the law is firmly
established that a district court should state on the record
the reasons for granting or denying summary judgment.
The district court clearly set out the reasons for rejecting
Petitioners’ claims in a lengthy order, following extensive
briefing and oral argument. Thus, Petitioners’ request for
review is misplaced.
A.
Nothing About Rule 56(a) Requires Clarification
Petitioners ask this Court to use this case “to clarify
that dismissing a party’s claim on summary judgment
without providing any substantive explanation violates
the requirement of Federal Rule of Civil Procedure 56(a)
to provide reasons for that dismissal”. (Br. 8.) But there
is nothing about Rule 56(a) that requires clarification: the
rule and the caselaw applying it are clear.
Starting with the rule itself, Rule 56(a) directly states
that a court “should state on the record the reasons for
granting or denying the [summary judgment] motion”.
Fed. R. Civ. P. 56(a). This specific sentence was added
when the rule was amended in 2010, codifying a practice
that was already common among courts. See Fed. R. Civ.
P. 56(a) Advisory Committee’s note to 2010 amendment
(noting that “[m]ost courts recognize this practice”).
Along with this guidance, the Advisory Committee also
noted that, under the rule, “[t]he form and detail of the
statement of reasons are left to the court’s discretion”.
(Id.)
10
The caselaw applying Rule 56(a) is equally clear and
consistent across circuits. As Petitioners themselves
acknowledge, courts of appeals take the approach that
a district court should “state the reasons for granting
summary judgment . . . on the record, as is required by
Rule 56(a)” and, if no reasons are stated, a court of appeals
will remand the case to the district court to do so. (Br. 8-9
(citing D’Onofrio v. Vacation Publ’ns, Inc., 888 F.3d 197,
210 n.13 (5th Cir. 2018); Certain Underwriters at Lloyd’s
v. Axon Pressure Prods., 951 F.3d 248, 272-273 (5th Cir.
2020)); see also Jackson v. Fed. Express, 766 F.3d 189,
196-97 (2d Cir. 2014).)
Thus, while Petitioners claim that lower courts need
guidance to apply Rule 56(a), nothing in their cited cases
supports such a contention. There is no circuit split. And
there is no uncertainty among courts in understanding
what the rule requires. Instead, as Petitioners effectively
concede, courts of appeals have ruled that a district court
must state on the record the reasons for granting or
denying summary judgment, and where district courts
have not, appellate courts have remanded. Clarification
by this Court is not needed.
B. The Lower Courts Explained Their Rejection
of the Rebate-Rate Claim
Petitioners argue that “neither the district court nor
the Second Circuit ever provided any explanation for
why Plaintiffs’ claim that Defendants misrepresented the
rebate rate for EpiPen should be dismissed on summary
judgment”. (Br. 2 (emphases in original).) That is wrong.
As an initial matter, the district court afforded
Petitioners ample opportunity to present their Rebate-
11
Rate Claim. It permitted a 90-page brief, allowed
thousands of pages of 56.1 contentions and held oral
argument.
Against that backdrop, the district court rejected the
claim for failure to adduce evidence sufficient to permit
an inference of scienter. The district court expressly
referenced Petitioners’ Rebate-Rate Claim at App. 58a:
Plaintiffs challenge certain statements and
communications by Mylan considered together.
Mylan at various points made claims to the
effect of, “If ANDA, then 13%.” . . . This is said
to be misleading because Mylan failed to also
disclose that the EpiPen, according to Plaintiffs
but contested by Defendants, was also rebated
at 13% but was not approved pursuant to an
ANDA.
On the following page, from App. 59a-60a, the district
court held that the record did not support an inference
of scienter:
Much of Plaintiffs’ argument turns on construing
the MDRP. But even if Plaintiffs are correct in
their reading of the statutory text, liability
could only exist if they established the clarity
of textual meaning sufficiently to also impute
knowledge (scienter) to Defendants.[] The
record supports no such inference; rather, it
is replete with evidence tending to significant
confusion or disagreement among and within
the regulatory agencies. There simply was
not a single, clear interpretation of the MDRP
12
statute rendering all the rest unreasonable.
Even if Defendants’ view of the MDRP was
unreasonable, that would not suppor t a
reasonable inference of scienter – requiring
evidence of ‘extreme’ recklessness, not mere
negligence or unreasonableness . . . .
The Court concludes that this degree of
regulatory uncertainty and confusion, overla[i]
d with the existing factual record, is insufficient
to permit a reasonable juror to infer that Mylan
knowingly made misleading statements about
its classification of the EpiPen. (emphasis
added.)
Moreover, the district court addressed scienter
concerning this claim in disposing of Petitioners’
classification claim. The district court found that Mylan
acted reasonably in classifying the EpiPen as an N-drug at
App. 78a-79a: “Mylan may well have thought it was – and,
indeed, reasonably thought it was – in the right regarding
how it classified the EpiPen”. It necessarily follows from
this ruling of Mylan’s reasonableness in how it classified
the EpiPen – which Petitioners did not appeal (Appeal Op.
Br. 19 n.14) – that it acted reasonably in how it rebated the
EpiPen. The appropriate rebate rate depends upon the
classification of EpiPen; the rate is derived directly from
the classification. 42 U.S.C. §1396r-8(c).
While Petitioners did not raise the district court’s
alleged failure to rule on scienter until they submitted
their reply brief in the Second Circuit, they briefed the
issue, it was argued orally and the Second Circuit asked
questions about it during oral argument. It was also
13
addressed in Petitioners’ request for rehearing and/or
rehearing en banc. Thus, this is not a case in which the
district court’s alleged failure to address a claim impaired
appellate review. In affirming the district court’s decision,
the Second Circuit stated it “disagree[d]” with Petitioners,
and, in fact, “[t]he district court expressly considered
each of the alleged misstatements underlying the MDRP
Claims and concluded that Appellants failed to adduce
sufficient evidence of scienter on any of them”. (App.
4a-5a.)
None of the arguments Petitioners now advance
supports granting their request. This is not a case in
which the lower courts were silent as to the facts or legal
grounds or where the record was unclear. (See Br. 12.)
It is also not a case in which the Second Circuit’s decision
was “based on the solitary celebration of the trial court”.
(Id. (citation omitted).) Rather, the district court handed
down a 62-page opinion that identified and addressed
Petitioners’ Rebate-Rate Claim. The Second Circuit
heard Petitioners’ arguments that they did not waive
their Rebate-Rate Claim and dismissed them, referring
to the pertinent parts of the district court’s opinion, as
well as setting out the well-established law that it applied
to affirm the district court’s decision. (App. 4a-5a.)
C.
The Lower Courts Explained Their Rejection
of the Government Investigation Claim
Petitioners’ claim that the district court also failed
to explain its rejection of their Government Investigation
Claim is also without merit. (Br. 2-3.)
Just as it expressly rejected Petitioners’ RebateRate Claim, the district court expressly rejected their
14
Government Investigation Claim. The district court
introduced the claim at App. 78a:
Plaintiffs also argue that the same Statements
of Regulatory Risk were misleading because
they purportedly implied that Mylan was not
yet being investigated by a regulator when, in
fact, Mylan had received a federal subpoena
related to the EpiPen’s rebate classification.
Then, at App. 78a-79a, the district court found no scienter:
[A]ll of the reasons that Mylan may well have
thought it was—and, indeed, reasonably
thought it was—in the right regarding how it
classified the EpiPen are also reasons why no
one at Mylan would have had reason to think
the subpoena material. That is, if, as the Court
has held, Mylan acted reasonably in its reliance
on CMS statements and other communications
in determining how to rebate the EpiPen, then
there is no reasonable basis for Mylan to have
regarded the subpoena material. (emphases
added) (citation omitted).
Petitioners seek to dismiss this language as referring
only to materiality, not scienter. (Br. 15.) But that
assertion is belied by the plain language of the district
court’s order. The district court referred to what Mylan
“thought”, what Mylan “reasonably thought” and what
Mylan would have “reason to think”. (App. 78a-79a.) This
is the language of scienter. It concerns the company’s
state of mind, including whether knowledge of falsity or
recklessness can be imputed to it.
15
Even if this language related to materiality, it would
not further Petitioners’ contention, as there is a clear
connection in this context between materiality and
scienter. If, as the district court found, Mylan reasonably
believed the subpoena was immaterial, then it could not
have acted with scienter in deciding not to disclose it.
Companies receive subpoenas all the time, and there is
no general legal requirement to disclose them. See Ont.
Tchrs.’ Pension Plan Bd. v. Teva Pharm. Indus. Ltd., 432
F. Supp. 3d 131, 167, 168 (D. Conn. 2019).
Here again, Petitioners argued to the Second Circuit
that the district court failed to address scienter as to
this claim, and the Second Circuit expressly rejected
the argument. The Second Circuit stated that “[t]he
district court expressly considered each of the alleged
misstatements underlying the MDRP Claims and
concluded that Appellants failed to adduce sufficient
evidence of scienter on any of them”. (App. 4a-5a.)
II. THE SECOND CIRCUIT PROPERLY REJECTED
PETITIONERS’ CLAIMS FOR FAILURE TO
PROVE LOSS CAUSATION, THE STANDARD
FOR WHICH IS CLEAR
Like their claims about there being uncertainty
concerning the degree to which district courts must
explain their reasoning, Petitioners’ argument that the
lower courts need guidance on the standard for loss
causation is off base. The law is clear and the Second
Circuit properly applied it here.
16
A.
The Law of Loss Causation Is Clear
As Petitioners acknowledge, the Private Securities
Litigation Reform Act of 1995 (“PSLRA”) provides that
“the plaintiff shall have the burden of proving that the act
or omission of the defendant alleged to violate this chapter
caused the loss for which the plaintiff seeks to recover
damages”. (Br. 17-18 (quoting 15 U.S.C. § 78u-4(b)(4)).)
This Court, in interpreting the PSLRA, has explained
that, to prove loss causation, plaintiffs must “prove that
the defendant’s misrepresentation (or other fraudulent
conduct) proximately caused the plaintiff’s economic
loss”, Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346
(2005), which involves distinguishing the alleged fraud
from the “tangle of [other] factors” that affect a stock’s
price. Id. at 343.
Based on the text of the PSLRA, and this Court’s
decision in Dura, the Second Circuit has explained the
standard in the following clear terms:
To establish loss causation, a plaintiff must show
that the subject of the fraudulent statement
or omission was the cause of the actual loss
suffered, i.e., that the misstatement or omission
concealed something from the market that,
when disclosed, negatively affected the value
of the security. Lentell v. Merrill Lynch & Co.,
396 F.3d 161, 173 (2d Cir. 2005)
In doing so, a plaintiff must disaggregate
those losses caused by ‘changed economic
circumstances, changed investor expectations,
new industry-specific or firm specific facts,
17
conditions, or other events,’ from disclosures
of the truth behind the alleged misstatements.
In re Flag Telecom Holdings, Ltd. Sec. Litig.,
574 F.3d 29, 36 (2d Cir. 2009) (quoting Dura
Pharms., Inc. v. Broudo, 544 U.S. 336, 343
(2005)); see also Lentell, 396 F.3d at 177
(requiring a plaintiff to ‘allege (i) facts sufficient
to support an inference that it was defendant’s
fraud—rather than other salient factors—that
proximately caused plaintiff’s loss; or (ii) facts
sufficient to apportion the losses between the
disclosed and concealed portions of the risk that
ultimately destroyed an investment’). (App.
5a-6a (cleaned up).)
Petitioners do not point to any decision of any court
anywhere taking a different view. On the contrary, courts
across the country are consistent in how they apply the
principles set out by this Court in determining whether a
plaintiff has proved loss causation. See, e.g., Bricklayers
& Trowel Trades Int’l Pension Fund v. Credit Suisse
Sec. (USA) LLC, 752 F.3d 82, 95 (1st Cir. 2014); McCabe
v. Ernst & Young, LLP, 494 F.3d 418, 433 (3d Cir. 2007);
Glaser v. Enzo Biochem, Inc., 464 F.3d 474, 477-79 (4th
Cir. 2006); Catogas v. Cyberonics, Inc., 292 F. App’x 311,
314 (5th Cir. 2008); D.E. & J. Ltd. P’ship v. Conaway, 133
F. App’x 994, 1000-01 (6th Cir. 2005); Ray v. Citigroup
Glob. Mkts., 482 F.3d 991, 994-95 (7th Cir. 2007); RandHeart of N.Y., Inc. v. Dolan, 812 F.3d 1172, 1179-80 (8th
Cir. 2016); Nuveen Mun. High Income Opportunity Fund
v. City of Alameda, 730 F.3d 1111, 1122-23 (9th Cir. 2013);
In re Williams Sec. Litig. - WCG Subclass, 558 F.3d 1130,
1136-37 (10th Cir. 2009); MacPhee v. MiMedx Grp., Inc.,
73 F.4th 1220, 1242 (11th Cir. 2023); Ark. Pub. Emps. Ret.
18
Sys. v. Harman Int’l Indus. Inc. (In re Harman Int’l
Indus., Inc. Sec. Litig.), 791 F.3d 90, 111 (D.C. Cir. 2015).
Thus, Petitioners’ claim that the law must be clarified
falls flat.
B. The District Court and the Second Circuit
Properly Rejected Petitioners’ Generic Drug
Claims for Failure To Show Loss Causation
After setting out the correct standard for loss
causation, the district court and Second Circuit properly
rejected Petitioners’ Generic Drug Claims for failing to
meet that standard. The district court found Petitioners’
loss causation arguments wanting for two primary
reasons: (1) they failed to “isolate the effect” of the
alleged corrective disclosures (i.e., failed to disaggregate
price declines attributable to alleged fraud from declines
attributable to non-fraud events) (App. 103a (citation
omitted)); and (2) they failed to show, for multiple reasons,
a correlation between any of the alleged triggers and the
alleged fraud. (Id. 104a-110a.)
On appeal, Petitioners offered no basis to disturb the
district court’s decision. They effectively ignored the
district court’s disaggregation holding (summarized in
(1), above). (Appeal Op. Br. 56-62.) Although it was the
district court’s lead rationale and related to each of the
disclosures at issue (App. 103a), Petitioners mentioned
disaggregation only concerning the May 2019 disclosure
and only to argue that “disaggregation between drugs”
was “inappropriate because the losses largely represented
general reputational harm”. (Appeal Op. Br. 61.)
Petitioners cited no case relieving them of the obligation
19
to disaggregate declines from alleged fraud events and
non-fraud events, and there is none. Nor did they point to
any showing of disaggregated declines. On the contrary,
Petitioners conceded they “were unable to sufficiently
disaggregate the effect of [disclosures concerning an
investigation of Mylan] from other confounding factors”.5
(Id. 58 n.36.)
In any case, the Second Circuit properly concluded
that Petitioners “failed to disaggregate the losses caused
by Mylan’s alleged agreements to allocate markets and
to fix prices of specific generic drugs from losses caused
by negative news relating to Mylan, generic drugs, and
antitrust generally”. (App. 6a.) And that is true as to
each of the alleged corrective disclosures identified by
Petitioners.
November 3, 2016. Petitioners sought to show loss
causation from a November 3, 2016 Bloomberg article
5. Petitioners also had no response to the other grounds on
which the district court found a failure of proof of loss causation.
Rather than deal with the district court’s rulings head on,
Petitioners claimed on appeal for the first time that Respondents
sought to conceal that Mylan’s “seemingly lucrative business model
(upon which its valuation was based) was unsustainable, resting
in material part on a conspiracy that could be broken up by law
enforcement or fall apart on its own at any time”. (Appeal Op.
Br. 57.) But that was not the theory Petitioners presented to the
district court; it did not correlate to the disclosures Petitioners
identified; and it was incompatible with the undisputed evidence,
e.g., Petitioners have not shown the DOJ Generic Pricing
Investigation has resulted in any action involving Mylan or any of
its employees or any damage to Mylan’s business.
20
reporting on the DOJ Generic Pricing Investigation into
generic drug companies, including Mylan. As the district
court held, however, the article did not disclose “anything
‘new’”; it merely repackaged existing information (as
confirmed by Petitioners’ own evidence). (App. 105a.) See
In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 514
(2d Cir. 2010) (holding that “[t]he securities laws require
disclosure that is adequate to allow investors to make
judgments about a company’s intrinsic value. Firms are
not required . . . to speculate about distant, ambiguous,
and perhaps idiosyncratic reactions by the press” to
escape 10b-5 liability).6
Petitioners did not dispute that the fact “Mylan was
a target of the [DOJ] investigation” had been “disclosed”,
at least, on December 4, 2015, February 16, 2016, May 3,
2016, and August 9, 2016, “all well before the Bloomberg
article was published” on November 3, 2016. (App.
105a; A-299-300 ¶¶ 1109-12.) Instead, they argued
that the Bloomberg article revealed “that [the] scope
of the investigation had increased” and that DOJ was
considering charges. (Appeal Op. Br. 58.) But the article
revealed nothing new about Mylan; instead, it referred to
the DOJ Generic Pricing Investigation expanding to cover
additional companies and additional drugs unconnected
6. A “generalized investor reaction of concern causing
a temporary share price decline . . . is far too tenuously
connected . . . to the [challenged] transaction[s] to support
liability”. In re Omnicom, 597 F.3d at 514. A holding “otherwise
would expose companies . . . to expansive potential liabilities for
events later alleged to be frauds, the facts of which were known
to the investing public at the time but did not affect share price,
and thus did no damage at that time to investors”. Id.
21
to Mylan or its personnel. (CA31 ¶ 101.)7 Petitioners’
assertion that investors “reasonably viewed the news that
the investigation was heading towards indictments, and
had expanded in scope, as showing that the risk to Mylan
was materially greater than previously revealed” was
pure speculation (Appeal Op. Br. 58). DOJ never brought
any charges against Mylan. Moreover, Petitioners failed
to isolate the effect of the allegedly corrective information
on Mylan’s stock price from that of the negative reporting
on the investigation’s expansion. (Id. 58 n.36.)
January 11, 2017. Petitioners also sought to show
loss causation from remarks by President-elect Trump
at a press conference where he called for changes to the
drug industry’s pricing practices. Petitioners argued
the remarks reflected the materialization of a concealed
risk of “government scrutiny”. (Appeal Op. Br. 59.) But
they mistakenly asserted that “[t]he only reason the
District Court gave for rejecting [their] proof was that
President Trump did not single out generic drugs or
reference Mylan or any of its drugs by name”. (Id.) In
fact, the district court also rejected Petitioners’ contention
because regulatory scrutiny was already known to the
market, such that Mr. Trump’s “statements are parallel
to similar posturing by politicians that has been rejected
in this district as a sufficient means by which to survive
summary judgment”. (App. 104a.) Having ignored the
point, Petitioners waived any challenge to this ruling.
Casciani v. Nesbitt, 392 F. App’x 887, 889 (2d Cir. 2010).
7. Citations to the Confidential Joint Appendix filed in the
Appeal below are designated “CA-__” with appropriate page
references.
22
Even if the district court had focused solely on the
fact that Mr. Trump did not single out generic drugs or
reference Mylan or any of its drugs by name, the district
court got it exactly right. Mr. Trump had long criticized
pharmaceutical pricing, and his remarks simply repeated
the criticisms he made at a rally on May 1, 2016. (A-298299 ¶ 1106.) The market was well aware of the specific
risk of mounting political scrutiny over drug pricing in
the lead-up to the 2016 election long before this alleged
disclosure. (A-298 ¶¶ 1104-05.) Petitioners asserted that
“the market was reacting to Mylan’s response to the
comments” and not to Mr. Trump’s posturing. (Appeal
Op. Br. 59.) But that argument failed because it lacked
evidentiary support and did nothing to: (1) establish that
the risk that caused the alleged loss was within the zone
of risk concealed by the alleged misrepresentation; or (2)
disaggregate the alleged declines.
October 31, 2017. Petitioners point to a proposed
amended complaint filed by the attorneys general of
multiple states (“AGs”) in a civil antitrust lawsuit against
many generic drug companies, including Mylan. But
as the district court held, Petitioners failed to establish
loss causation for three independent reasons: (1) the
AGs’ amended complaint did not adduce new information
showing a connection between anything Mylan said and
new facts; (2) Petitioners failed to disaggregate losses
caused by an earlier AG complaint; and (3) “to the extent
that the amended AG complaint disclosed new information,
it was new information that [the district court had] already
dismissed in this case”. (App. 107a-108a.) On appeal,
Petitioners made no mention of the district court’s second
and third points, which necessarily foreclosed their losscausation argument as to the AGs’ amended complaint.
23
Petitioners did argue that the amended complaint
“newly implicated Mylan’s President Respondent Malik
by name in the Doxy DR scheme”. (Appeal Op. Br.
59-60.) However, Petitioners did not dispute that the
AGs had previously disclosed (no later than December
2016) the alleged involvement of an unnamed Mylan
executive in alleged antitrust misconduct. (A-301-302
¶¶ 1115-18.) Petitioners argued that the district court
overlooked evidence that it was the disclosure of Mr.
Malik’s name that moved Mylan’s stock price but offered
no supporting evidence. And even if they had, Petitioners
failed to disaggregate the information about Malik from
other information contained in the amended complaint.
Indeed, Petitioners had previously argued that the
“breadth and ongoing nature of the investigation” was
“important revelatory information” contained in the
amended complaint, and Petitioners’ expert attributed the
stock price decline to both the expanded breadth of the
investigation and the revelation of Malik’s involvement.
(Class Representatives’ Statement Pursuant to Local Civil
Rule 56.1 ¶ 2318; CA-34 ¶ 121.)
May 13, 2019. Finally, Petitioners pointed to
disclosures on May 10, 2019 regarding a State AG’s
announcement that they were filing a new lawsuit against
20 companies and 15 individuals, including Mylan and Mr.
Nesta (an Individual Defendant), and including additional
drugs. (Appeal Op. Br. 60.) The district court correctly
found the disclosures insufficient to establish loss
causation because: (1) the “lawsuit exclusively concerned
drugs that this Court ha[d] already rejected in the context
of this litigation” and (2) “there has been no proof adduced
that the risk materialized and that [Respondents] knew or
should have known what that risk was (here, uncharged
24
antitrust allegations)”. (App. 109a.) On appeal, Petitioners
addressed only part of the district court’s ruling, leaving
dispositive elements unchallenged.
In any case, none of Petitioners’ assertions undermined
the district court’s decision. Petitioners argued the district
court did not dismiss Petitioners’ allegations regarding
Levothyroxine (Appeal Op. Br. 60-61), but they ignored the
fact that the drug was already at issue in lawsuits making
similar allegations, which Petitioners made no effort to
disaggregate. Petitioners asserted “the expanded scope
of the investigation and the extensive participation of
[Respondent] Nesta in the scheme made the prospect that
Mylan would face penalties and regulatory scrutiny more
likely”. (Id.) But there was no evidence of that, and neither
Mylan nor Mr. Nesta was criminally charged or required
to pay any penalties concerning generic drug pricing.
Petitioners argued the district court “erred in limiting
[their] proof to evidence directly relating to 21 specific
drugs” (id.), but that argument failed for multiple reasons,
including that Petitioners offered no evidence of collusion
as to any drug. And although Petitioners asserted
that “disaggregation between drugs is particularly
inappropriate because the losses largely represented
general reputational harm” (id.), they presented no legal
or factual support for that assertion.
Petitioners’ arguments, and Respondents’ rebuttals,
were discussed at length during oral argument. And in
its summary order, the Second Circuit agreed with the
district court’s overall finding that Petitioners “failed
to disaggregate the losses caused by Mylan’s alleged
agreements to allocate markets and fix prices of specific
generic drugs from losses caused by negative news
25
relating to Mylan, generic drugs, and antitrust generally”.
(App. 6a.) As to each of the alleged disclosure events,
the Second Circuit concluded that none of the disclosures
could support loss causation. According to the Second
Circuit, the November 3, 2016 disclosure “was merely a
‘negative characterization of already-public information’
and could not support loss causation, even if a ‘generalized
investor reaction of concern caus[ed] a temporary share
price decline.’” (Id.) (quoting In re Omnicom, 597 F.3d 501,
512-14.) And, for the other alleged disclosures, the “events
revealed little, if any, new information about Mylan, and ‘it
was essential for [Petitioners] to disaggregate new effects
and the effects of a new characterization of already filed
documents.’” (Id. at 7a (quoting In re Mylan N.V. Sec.
Litig., 666 F. Supp. 3d 266, 328 (S.D.N.Y. 2023).)
III. PETITIONERS MISSTATE THE IMPLICATIONS
OF THE SECOND CIRCUIT’S DECISION AND
THE NEED FOR FURTHER REVIEW
Finally, and despite Petitioners’ rhetoric, the Second
Circuit’s decision is not one that has “far-reaching and
highly problematic implications”. (Br. 21-22.)
First, the Second Circuit acted by summary order.
As the Second Circuit’s local rules explain, “[r]ulings
by summary order do not have precedential effect”. See
Local Rule 32.1.1(a). Therefore, even if Petitioners’ claims
of error were true (and they are not), the implications of
the Second Circuit’s decision are quite limited.
Second, nothing in the Second Circuit’s decision would
allow district courts to ignore claims by plaintiffs or any
other party. (Br. 21.) There is no holding or dicta for that
26
point anywhere in the decision. On the contrary, both the
district court and Second Circuit carefully considered
Petitioners’ claims and expressly explained why they
dismissed them. Petitioners’ point is especially misplaced
where the district court permitted them to submit a brief
and Rule 56.1 contentions (excluding exhibits) in excess
of 1,300 pages.
Third, nothing in the Second Circuit’s decision would
render proof of loss causation impossible in securities
cases. (Id. 22.) The decision did not turn on a change in
the prevailing standard; it turned on Petitioners’ failure to
meet that standard by electing not to disaggregate. That
this was a question of evidence and not law is highlighted
by the district court’s motion to dismiss ruling, in which
it stated that, at the motion to dismiss stage, Petitioners
“[had] sufficiently pleaded loss causation”, but “defer[red]
questions about the robustness of [Petitioners’] selection
of corrective disclosures to a later stage of litigation, after
the aid of discovery”. In re Mylan N.V. Sec. Litig., No.
16-CV-7926 (JPO), 2020 WL 1673811, at *6 (S.D.N.Y. Apr.
6, 2020). Despite extensive discovery, Petitioners were
unable to show that those alleged disclosures caused the
harm they claimed occurred. The disagreement about
factual findings, for which this Court “rarely grant[s]”
review. Sup. Ct. R. 10.
Fourth, there is nothing unjust about the Second
Circuit’s decision. The generic pricing investigations
to which Petitioners refer resulted in no actions
involving Respondents.
And the settlements with
DOJ and the Securities Exchange Commission included
MDRP claims different from those at issue here and
did not include any admissions of wrongdoing. That
Petitioners claimed damages in this case, and
pointed to other
27
cases involving other defendants that resulted in guilty
pleas and settlements is irrelevant. Petitioners failed to
establish any basis for damages here. The only injustice
in this case is that Petitioners have forced Respondents
to defend baseless claims for more than seven years and
at great expense.
Fifth, none of the reasons for review offered by
Petitioners survives scrutiny. This is not a case in which
the Second Circuit “decided a question of federal law that
has not been, but should be, settled by this Court”. (Br.
7 (quoting Sup. Ct. R. 10(c)).) It is not a case in which the
Second Circuit “so far departed from the accepted and
usual course of judicial proceedings, or sanctioned such
a departure by a lower court, as to call for an exercise
of this Court’s supervisory power”. (Id. (quoting Sup.
Ct. R. 10(a)).) And it is not a case in which the Second
Circuit “decided an important federal question in a way
that conflicts with relevant decisions of this Court”. (Id.
(quoting Sup. R. 10(c)).) Nothing in Petitioners’ brief in
any way supports the characterization of this case in these
ways. The Second Circuit rightly rejected Petitioners’
claims.
28
CONCLUSION
For the foregoing reasons, the petition should be
denied.
Respectfully submitted,
Lenard Barrett Boss
Cozen O’Connor P.C.
Three World Trade Center
175 Greenwich Street,
55th Floor
New York, New York 10007
Counsel for Respondent
James Nesta
September 20, 2024
David R. Marriott
Counsel of Record
Cravath, Swaine & Moore LLP
Two Manhattan West
New York, New York 10001
(212) 474-1000
dmarriott@cravath.com
Counsel for Respondents
Mylan N.V. and Mylan Inc.,
Heather Bresch, Paul B.
Campbell, Robert J. Coury,
Rajiv Malik, Kenneth S.
Parks and John D. Sheehan
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.