Lawyers representing pharmaceutical companies in litigation over off-label marketing may want to read up on the U.S. Supreme Court's decision in the so-called "Stolen Valor" case, former U.S. Solicitor General Paul Clement says.
Mr. Clement spoke in Philadelphia earlier this month to the Federalist Society, a conservative and libertarian organization seeking to reform the American legal system, for his annual review of the high court's term, and noted there is one issue the court is often consistent on: First Amendment cases involving free speech.
They protected speech in its ugliest forms, Mr. Clement said, pointing to violent video games, protesting at funerals and, in the Stolen Valor case, lying about receiving a Medal of Honor.
The Stolen Valor case, United States v. Alvarez, was a "great illustration of how pro-First Amendment this court is," said Mr. Clement, who was appointed to the solicitor general position by President George W. Bush in 2005 and stepped down in 2008.
The Supreme Court has consistently held that there has to be some room left in the law to allow for false speech.
"This case is useful in off-label marketing cases and fraud prosecution," Mr. Clement said.
He noted that the government has settled these types of cases for high-dollar figures and there are a number of lawsuits against pharmaceutical companies regarding off-label marketing. But Mr. Clement said the court's willingness to give "breathing space" to speech may benefit the drug companies.
The Alvarez case was one of the few high-profile cases on the court's docket this past term that Mr. Clement wasn't personally involved with. He also cautioned that his commentary on the Arizona immigration case, Arizona v. United States, or the landmark health care reform case, National Federation of Independent Business v. Sebelius, should be taken with a grain of salt, because he argued in both cases.
It was the health care argument, which took a full week of the court's March session, that contributed to a modern-day low in opinions in argued cases, Mr. Clement said. The court issued 65 opinions, a low in at least 50 years, he said.
The court had been dropping down toward 70 opinions but seemed in the last few years to be inching back up toward 80, but then it fell back this term.
The court has become more selective in the cases it has taken, but Mr. Clement noted the court also issued a higher number of summary reversals in which the court simply reverses the lower court without taking full briefing or argument.
While lawyers have typically put "all their eggs in the certiorari basket," they might want to start thinking about going for summary reversal, Mr. Clement said.
The biggest case to hit the court in several terms was the one challenging President Barack Obama's 2010 health care reform legislation.
"I thought I knew about big Supreme Court cases -- I have to say I've never really seen anything like the attention the health care case garnered," he said.
It drew those interested in constitutional law, health care and politics.
Mr. Clement, who argued against the individual mandate, has avoided coverage of the court's decision in order to "stay sane" over the past few weeks.
Though he ended up on the losing side, hesaid the ruling is an important one moving forward because it represents another limit on Congress' commerce power.
The justices were also clear that the Medicaid expansion was not mandatory in that states didn't have to accept federal money to expand the program to bridge the gap for those near the poverty line who won't be able to afford to buy their own insurance come 2014.
Mr. Clement said that if a number of governors choose not to accept the money, Congress might have to rethink the law because it was based on the idea of Medicaid expansion to help meet the goal of insuring everyone.
When it comes to business cases, the high court didn't have as many blockbusters as it did last term when it decided Wal-Mart v. Dukes and AT&T Mobility v. Concepcion.
The court punted for next year its decision in a case over the Alien Tort Claims Act, which often deals with human-rights violations, because it wanted briefing on an additional issue. That case will address whether corporations can be sued under the act and whether the cases can apply to foreign entities.
One business case the court did decide this term was Christopher v. SmithKline Beecham, dealing with whether pharmaceutical sales reps are employees due overtime under the Fair Labor Standards Act.
Mr. Clement represented the pharmaceutical company, which now goes by GlaxoSmithKline, and said billions of dollars were at stake. He said the court almost always gives deference to an administrative agency that files an amicus in cases, which the government did here on behalf of the plaintiffs. But a split court found in favor of GSK.
The Supreme Court has also asserted itself in patent cases, Mr. Clement said, noting the court is no longer afraid to diverge from the Federal Circuit or the solicitor general on those issues. In Mayo Collaborative Services v. Prometheus Laboratories, the court determined a blood test was not patentable subject matter, going against both the solicitor general and the Federal Circuit.
The ruling "demonstrates increasing confidence of the Supreme Court in the patent area," Mr. Clement said.
In yet another appearance before the Supreme Court, Mr. Clement represented Texas in the redrawing of its electoral maps and compliance with the Voting Rights Act. From gauging the justices' questions during the case, Mr. Clement said he thinks the issue of race and the Voting Rights Act will "very likely" be on the court's agenda next term.
The court is also slated to hear a case involving the use of affirmative action at the University of Texas.
After a very high-profile term, the court sometimes looks to take it easy the next term and "take nothing but ERISA cases," Mr. Clement joked. But he said the court won't have that luxury this coming term.