In re HIV Antitrust Litigation

Background

On May 22, 2023, the plaintiffs asked Gilead and Teva to disclose any arrangement or agreement related to the case or the upcoming trial. The request included possible agreements concerning judgment-sharing, indemnification, limits on contribution, and witness appearances. After the defendants refused, the plaintiffs filed the motion at issue, Docket No. 1882, one day before trial.

Court’s Analysis

The court first found the motion untimely. It also noted the defendants’ assertion that the plaintiffs had obtained information during mediation sessions, but the court stated that it was rejecting the motion on the merits as well.

Although the motion was formally presented as a request for disclosure, the court concluded that it also sought a ruling about whether the agreement could be admitted as evidence. The plaintiffs argued that a judgment-sharing or indemnification agreement could be relevant to show witness bias or demonstrate that parties who appeared to oppose one another were not actually adverse.

The court found that, in this case, any such agreement had minimal probative value. The plaintiffs accused the defendants of willfully entering into an anticompetitive reverse-payment settlement agreement, so the court considered it clear that Gilead and Teva’s interests were aligned. As a result, the agreement would have little value in showing that the defendants were not adverse or in attacking witness credibility.

The court found significant unfair prejudice if the agreement were admitted. A jury might infer that the defendants were liable because they had agreed in advance how to allocate damages. The jury might also make an improper propensity inference—that agreeing to share a judgment showed that the defendants had also acted together improperly when they entered the patent settlement agreement. The defendants also argued that admitting the agreement would waste time by requiring evidence about settlement tactics and why antitrust defendants use judgment-sharing agreements.

Disposition

Judge Edward Chen denied the plaintiffs’ motion for disclosure and/or admissibility based on untimeliness and Rules 402 and 403 of the Federal Rules of Evidence. Rule 402 generally concerns whether evidence is relevant and admissible; Rule 403 permits exclusion when unfair prejudice or other listed concerns substantially outweigh the evidence’s probative value. The court did not expressly rule on the defendants’ argument that the agreement was privileged, although it noted authority supporting that position. To the extent the plaintiffs requested private, or in-camera, review of the agreement, the court denied that request. The order disposed of Docket No. 1882.