On November 12, 2015, a federal magistrate judge issued an Order sustaining Shire's privilege claims and denying with prejudice Plaintiffs' request to apply the crime-fraud exception to the documents at issue. Generally, the attorney-client privilege does not protect communications made in further of a crime or a fraud. Plaintiffs argued that the court should apply the crime-fraud exception because Shire allegedly engaged in a reverse-payment scheme that violated the antitrust laws (the fraud), and that the scheme was furthered by advice from counsel. The magistrate judge held that Plaintiffs' arguments mirrored their substantive antitrust claims. Thus, the magistrate judge indicated that to decide Plaintiffs' crime-fraud arguments, he would have to resolve factual and legal issues not yet decided by a jury or the district court judge – something the magistrate judge was reluctant to do. Notably, the magistrate judge denied the motion with prejudice because he was able to review the documents at issue where he found "no evidence of illegal or fraudulent intent" by either Shire or its attorneys.
Shire's team at FLH includes Ed Haug, Porter Fleming, Michael Brockmeyer, John Collins, Sandra Kuzmich, David Zwally, Andrew Wasson, David Shotlander, Scot Pittman, Jonathan Herstoff, Jason Kanter, Caroline Bercier, and Jared Schubert.
To view the Order, please click here.
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