Insmed Inc (INSM)

[coinstarz]

Re: ABHARPLOONTA - Comment? by: abharploonta
Long-Term Sentiment: Strong Buy 06/26/06 10:42 pm
Msg: 111043 of 111044

The Lanham Act charges in California were based upon allegations that INSM had disparaged Increlex during investment conferences. INSM presented great caselaw precedent in its Brief establishing as a matter of law that attendees at those conference were not "consumers" of Increlex or iPlex, and therefore not the class of people intended to be protected by the Lanham Act.

Off the top of my head, I think TRCA is free to file a new case under the Lanham Act, but it would have to allege disparagement of Increlex by INSM to physicians, not investors. I beleive that is exactly what they did, but in making that statement I am relying on other MB posts describing the new TRCA complaint, which I haven't read myself. I've been very, very busy lately.

I do think that INSM might be able to claim that any remarks allegedly made by INSM salespeople to physicians, if those remarks predated the California dismissal, are covered and barred by the res judicata effect described by Parentsgratae. Normally, you are supposed to include all of your gripes in one lawsuit, and you cannot maintain perpetual litigation by re-filing something you could have and should have alleged in your earlier filing. The Judge in CA refused to let TRCA amend their Complaint again in CA. TRCA filed ASAP in Virginia, and their Complaint there must have alleged stuff which occured before the CA dismissal. It was probably the same stuff they would have filed in CA if they had been allowed to Amend. If the VA Judge feels this is an attempt to relitigate issues resolved in CA, then maybe a dismissal would occur. On the other hand, it TRCA can get some ped endo to say the INSM salespeople disparaged Increlex last week, the Judge would allow amendments, and the case would go forward on the new allegations despite the CA dismissal.

In summary, each disparagement made to a consumer gives rise to a new Lanham Act case, so it doesn't matter that an old case involving different (and insufficient) allegations was previously dismissed. I have some questions in my mind whether "new" allegations that could have been alleged in the old case, but were not, might be barred by the dismissal of the old case. The problem could be easily circumvented by TRCA alleging in the new case that disparagement of Increlex by INSM is ongoing.

I still think that TRCA doesn't really care if it wins or loses these "unfair business practices" cases. They just want to force INSM to avoid saying that Increlex is unsafe, or less safe than iPlex. They are already having a tough time selling Increlex, and if INSM felt free to hammer them on the safety issue, they would be doing even worse. So, from TRCA's perspective, just having a suit on file is sufficient to meet the needs of their strategy in this area.

Posted as a reply to: Msg 111003 by mojine