For those who’ve been working towards in mass torts for any size of time, you’ve in all probability handled MSP Restoration. We’ve posted about this Medicare Secondary Payor Troll many occasions (most lately right here). Certainly one of MSP’s typical litigation approaches is to say it has assignments of rights from sure Medicare Benefit Plans after which assert claims (normally in reference to present MDLs) for reimbursement from drug and machine producers. At present’s determination, MSP Restoration Claims Sequence, LLC v. Sanofi-Aventis U.S., LLC, 2024 WL 4100379 (D.N.J. Sept. 6, 2024), is just a little completely different, in that MSP alleged that the defendants engaged in a pricing scheme to unlawfully increase the value of insulin. MSP sought restoration primarily based on alleged assignments from 57 Medicare Benefit Plans that they contended made overpayments on behalf of the plans’ beneficiaries. The choice addressed a discovery dispute the place MSP refused to provide paperwork regarding (1) litigation funding, and (2) advertising and marketing supplies geared toward its potential assignors. The Court docket affirmed a particular grasp’s determination discovering in favor of the defendants on each objects.
As to litigation funding, plaintiffs initially took the place that they didn’t have to provide data in response to the District of New Jersey’s native rule requiring disclosure of sure litigation funding data (we’ve blogged about that native rule right here). After dropping a spherical with the particular grasp, plaintiffs filed a certification stating that that they had not obtained any litigation funding on a non-recourse foundation. Regardless of that illustration, the defendants argued that they had been entitled to discovery on the subject as a result of the web sites of three entities concerned with plaintiffs clearly indicated the entities’ core companies had been litigation funding and litigation finance. Though plaintiffs asserted the entities weren’t litigation funders—regardless of all appearances in any other case—defendants sought to check that illustration with discovery. The Court docket agreed with the defendants:
[Funding documents are] related in figuring out the true celebration in curiosity for this litigation and likewise are related to Defendants’ defenses of champerty and upkeep. Defendants have recognized paperwork suggesting three entities—Virage Capital Administration, RD Authorized Finance, and Brickell Key Investments—have intimate involvement in Plaintiffs’ decision-making, and people entities’ web sites point out they’re concerned in litigation funding and/or litigation financing.
Id. at *6.
Plaintiffs argued that their certification of no non-recourse funding ought to have shut down any discovery into litigation funding primarily based on a call within the Valsartan litigation holding that defendants should show good trigger for litigation funding discovery—a call that pre-dated the adoption of Native Rule 7.1.1. In re: Valsartan NDMA Contamination Litigation, 405 F. Supp. 3d 612, 615 (D.N.J. 2019). However the Court docket famous that the Valsartan determination didn’t make litigation funding discovery “off limits.” As a substitute, the Valsartan court docket held that such discovery can be permissible if “good trigger exists to indicate the invention is related to claims and defenses within the case,” similar to “the place there’s a enough exhibiting {that a} non-party is making final litigation or settlement selections, the pursuits of plaintiffs or the category are sacrificed or not being protected, or conflicts of curiosity exist.” MSP Restoration Claims Sequence, 2024 WL 4100379 at *6. The Court docket discovered that exhibiting had been met:
Right here, the Court docket finds good trigger exists for Defendants to conduct restricted discovery into litigation funding, significantly because it pertains to the entities Virage Capital Administration, RD Authorized Finance, and/or Brickell Key Investments, to the extent any such paperwork exist, as a result of Defendants have recognized paperwork suggesting that these three entities have intimate involvement in Plaintiffs’ decision-making. Tellingly, Plaintiffs haven’t argued in any other case, nor have they argued that no such litigation funding paperwork exist.
Id.
With respect to advertising and marketing supplies focusing on potential assignors—which might appear to be integral to MSP’s enterprise mannequin and would expose how plaintiffs obtained the assignments that shaped the bases of their claims—such paperwork would have been aware of the defendants’ discovery requests however had been absent from the productions. MSP’s main objections to manufacturing of those supplies had been that they weren’t related or captured by the agreed upon TAR (know-how assisted assessment) ESI protocol. The Court docket rejected these arguments out of hand, discovering that the supplies had been related and that the TAR protocol didn’t absolve the plaintiffs from producing responsive paperwork.
The Court docket issued its determination granting the funding and advertising and marketing supplies discovery from MSP on September 6, and the events entered a stipulation of dismissal with prejudice of all claims on September 13. The defendants had a movement for sanctions pending, so it’s doubtless there have been different components impacting the dismissal. However the timing of the dismissal following the Court docket’s order requiring the manufacturing of selling and litigation funding documentation is actually value noting.