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State v. Actavis Pharma, Inc.

Supreme Court of New Hampshire

June 30, 2017

THE STATE OF NEW HAMPSHIRE
v.
ACTAVIS PHARMA, INC. & a.

         Merrimack

          Argued: March 1, 2017

          Joseph A. Foster, attorney general (Lisa M. English, senior assistant attorney general, and Francis C. Fredericks, assistant attorney general, on the brief, and Ms. English orally), for the State.

          Preti Flaherty, PLLP, of Concord (Brian M. Quirk on the joint brief), for defendant Actavis Pharma, Inc.

          McLane Middleton, Professional Association, of Manchester (Wilbur A. Glahn, III and Michael A. Delaney on the joint brief, and Mr. Glahn orally), for defendant Endo Pharmaceuticals, Inc.

          Boutin & Altieri, P.L.L.C., of Londonderry (Edmund J. Boutin on the joint brief), for defendant Janssen Pharmaceuticals, Inc.

          Nixon Peabody LLP, of Manchester (David A. Vicinanzo, Gordon J. MacDonald, Holly J. Barcroft, and Anthony J. Galdieri on the joint brief), for defendant Purdue Pharma L.P.

          Hinckley Allen, of Concord (Michael J. Connolly and Christopher H.M. Carter on the joint brief), for defendant Teva Pharmaceuticals USA, Inc.

          DALIANIS, C.J.

         The State appeals, and the defendants, Actavis Pharma, Inc., Endo Pharmaceuticals, Inc., Janssen Pharmaceuticals, Inc., Purdue Pharma L.P., and Teva Pharmaceuticals USA, Inc., cross-appeal, an order of the Superior Court (Nicolosi, J.) denying the State's motion to enforce administrative subpoenas issued to the defendants under the Consumer Protection Act (CPA), RSA chapter 358-A (2009 & Supp. 2016), and granting the defendants' motion for a protective order. We reverse and remand.

         I

         The relevant facts follow. In June 2015, the Office of the Attorney General (OAG) retained the law firm of Cohen Milstein Sellers & Toll PLLC (Cohen Milstein) on a contingency fee basis "to represent [the OAG] in an investigation and litigation of potential claims regarding fraudulent marketing of opioid drugs." (Emphasis added.) In September, the OAG and Cohen Milstein entered into a second retainer agreement that "supersedes the initial retainer agreement, executed June 15, 2015, and is effective as of that date." The September retainer agreement states that Cohen Milstein is retained "to assist [the OAG] in an investigation and litigation of potential claims regarding fraudulent marketing of opioid drugs." (Emphasis added.)

         In August 2015, pursuant to RSA 358-A:8 (2009), the OAG subpoenaed the defendants, with return dates of September 15, "to produce for examination by the Attorney General" specified "information and documentary material because the Attorney General has reason to believe that [the defendants] have engaged in or have information about unfair trade practices and methods of competition." The subpoenas seek documents and information related to each defendant's opioid sales volume in New Hampshire, the nature and scope of each defendant's plans and efforts to market opioids for chronic pain, the nature of and basis for representations made to prescribers and consumers about the use of opioids for chronic pain, and each defendant's role in causing health care providers to prescribe opioids to treat chronic pain. Although the defendants initially stated that they intended to comply with the subpoenas, they subsequently refused to do so, citing their objection to the OAG's retention of Cohen Milstein to assist in the investigation on a contingency fee basis.

         In October, the State moved to enforce the administrative subpoenas. The defendants answered the State's complaint and counterclaimed that the OAG's engagement of outside counsel is unlawful. In addition, the defendants moved for a protective order, seeking to "bar the Attorney General from engaging contingent fee counsel to: (a) participate in or assume responsibility for any aspect of the State's investigation of alleged violations of the CPA . . .; or (b) participate in or assume responsibility for any subsequent enforcement action pertaining to alleged CPA violations." The defendants argued that the OAG's fee agreements with Cohen Milstein: (1) violate RSA 21-G:22 and:23 (2012) (amended 2016); (2) violate New Hampshire common law; (3) are ultra vires because the OAG did not comply with RSA 7:12 (2013) (amended 2016) or:6-f (Supp. 2016); (4) violate the doctrine of separation of powers; (5) violate the New Hampshire Rules of Professional Conduct; and (6) violate due process under the New Hampshire and United States Constitutions. The State replied, ...


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