Apparently there are several lawsuits filed on behalf of the AG’s office where the defense is raising the issue of the AG’s ability to prosecute cases using private lawyers hired on contingency fee contracts. In Jim Hood v. Bristol-Myers Squibb Co., et al., the defendants have filed a request for interlocutory appeal on this issue (it was filed Oct. 13, 2015; the Court has not granted or denied the petition yet).
In 2012, the legislature enacted MCA Sect. 7-5-8 which places limits on the AG’s ability to hire private outside counsel to pursue lawsuits on its behalf. Sect. 7-5-8(2) states that “A contingency fee shall not be based on penalties or civil fines awarded or any amounts attributable to penalties or civil fines.”
In June 2012, a month before the statute became effective, the AG, through a Texas law firm (Bailey Perrin Bailey, PLLC), filed a lawsuit against two pharmaceutical companies “seeking hundreds of millions of dollars in civil penalties. Plaintiff asserts that Defendants’ marketing of the prescription drug Plavix®-recommended by leading medical guidelines and one of the most widely prescribed medicines in the world-was a fraud, because Plavix® is less effective and more expensive than alternatives such as aspirin.” According to the Defendants:
The current complaint does not claim the State of Mississippi was damaged by the marketing of Plavix®. It seeks only civil penalties and to enjoin Defendants from continuing to engage in misleading marketing of the drug. It asks for $ I 0,000 in penalties for every claimed Mississippi Consumer Protection Act (“MCP A”) violation, apparently for every time Plavix® was sold in the State. See Appendix (“APP.”) 2, at 22. Yet, as the State surely knows, Plavix® went generic in 2012 and these Defendants have not actively promoted it since then.
The Defendants counterclaimed seeking a declaratory judgment that the contingency fee contract was illegal. The chancellor dismissed the counterclaim and the Defendants have filed an interlocutory appeal.
Here’s the petition
The Chamber of Commerce of the USA and the Pharmaceutical Research and Manufacturers of America have filed for permission to file this amicus brief.
The AG’s response