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In Re Flonase Antitrust Litigation

July 2, 2012

IN RE FLONASE ANTITRUST LITIGATION


The opinion of the court was delivered by: Anita B. Brody, J.

THIS DOCUMENT RELATES TO:

: Indirect and Direct Purchaser

Actions

MEMORANDUM

I. INTRODUCTION

Direct and Indirect Purchasers of a steroid nasal spray containing the active ingredient fluticasone propionate ("FP"), along with a generic FP manufacturer, have brought actions against Defendant SmithKline Beecham Corporation, doing business as GlaxoSmithKline PLC ("GSK"), the manufacturer of the branded version of FP ("Flonase"), alleging various violations arising from GSK's conduct delaying market entry of generic FP. Currently before me is a dispute between Direct Purchasers and GSK concerning whether attorney-client privilege attaches to the communications involving GSK and independent consultant Swiftwater Group L.L.C. ("Swiftwater").*fn1 I initially referred this matter to a Special Master to render an advisory Decision and Recommendation on whether privilege attached to the communications involving GSK and Swiftwater ("Swiftwater Documents"). On December 13, 2011, the Special Master issued a Decision and Recommendation finding, as a matter of law, that the Swiftwater Documents were not privileged.

In response to the Special Master's Decision and Recommendation, GSK filed a motion for de novo review of the Special Master's finding that the Swiftwater Documents were not privileged. On May 2, 2012, I held a hearing on GSK's motion. Following the hearing, I issued an order granting GSK's motion for de novo review to the extent that otherwise privileged communications between GSK and Swiftwater do not lose their privileged status simply by having Swiftwater included in them. See No. 08-3149, ECF No. 333; No. 08-3301, ECF No. 421. Based on this conclusion, I ordered an in camera review of the Swiftwater Documents that Direct Purchasers believe GSK incorrectly claims are privileged. I referred this task to Magistrate Judge Strawbridge for a Report and Recommendation as to which documents should be entitled to privilege. The opinion that follows explains why the Swiftwater Documents do not lose their privileged status solely because Swiftwater is an independent consultant.

II. BACKGROUND

Swiftwater is a national consulting firm that provides pharmaceutical consulting services, as an independent contractor, to large multi-national corporations like GSK. On July 1, 1999, GSK and Swiftwater began a Master Consulting and Service Agreement ("Master Agreement"). Def.'s Mot. App. II, C2. According to the Master Agreement, Swiftwater was to provide consulting services that included, but were not limited to, "advice, analysis, management, technical or operational support or software programming." Id. at ¶ 1. The Master Agreement characterized Swiftwater's role as an "independent contractor" and "not as [GSK's] . . . agent or employee," and further stated that Swiftwater had "no authority to make any statement, representation, or commitment . . . binding upon [GSK]" without GSK's authorization. Id. at ¶ 13. Additionally, the Master Agreement required confidentiality as to "any and all information provided" relating to Swiftwater's services. Id. at ¶ 7.

In 2001, GSK formed a Flonase brand maturation team to assist the corporation as the Flonase brand matured. From its inception, Swiftwater was involved with the Flonase brand maturation team. Def.'s Mot. App. I, B2 at Attach A ¶ A.1. Swiftwater's involvement with the Flonase brand maturation team was defined by a series of engagement letters and work agreements. Def.'s Mot. App. I. The Flonase brand maturation team was expected to "help generate the development of the [maturation] plan by establishing and then prioritizing a comprehensive set of strategic options." Def.'s Mot. App. I, B2 at Attach. A ¶ A.1. Swiftwater "was secured . . . to coordinate this cross-functional matrix team, [and to] help provide additional administrative support to bring these various elements together." Pls.' Mot. Ex. 3 at 64. As understood by Associate General Counsel for GSK, Swiftwater's role was to "support . . . the brand maturation team," "[a]nd to do the kinds of things consultants do well, organize and compile ideas and catalyze people to work well together and so on." Def.'s Mot. App. III, E.

Specifically, during the initial stage of the Flonase brand maturation plan, Swiftwater's role was "to work with . . . the core-team to determine the necessary work streams for the creation of the Brand Maturation Plan," and to "help create and integrate the project plans necessary to build the strategy." Def.'s Mot. App. I, B2 at Attach. A ¶ A.1. To do this, Swiftwater would be "drawing on [its] experience in [its] work with Zantac and Ceftin in helping to guide the expanse of strategic options to consider and in developing the plans to determine the viability and or effectiveness of each option." Id.

As the Flonase brand maturation project progressed, Swiftwater entered into a new work agreement with GSK "to serve in project management and analytical service roles to help the Flonase Brand team guide and create recommendations for Flonase Brand Maturation Strategy." Def.'s Mot. App. I, B3 at Attach. A ¶ A.1. As part of this work agreement, Swiftwater agreed to provide: a white paper summarizing its analysis and recommendations for brand maturation strategy, an executive summary presentation of the brand maturation plan, interim presentations, and scenarios in financial models to support its recommendations. Id.

By October 2001, three work streams had been identified to develop the Flonase brand maturation strategy: legal and regulatory, business development, and standard business practices. Def.'s Mot. App. I, A2 and C2. Swiftwater contributed to the development and analysis of all three work streams. Def.'s Mot. App. I, A2, C2, and B4.

According to an "integrated action plan," Swiftwater and the Flonase brand maturation team evaluated possible projects that touched on ...


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