No. 15-____ IN THE Supreme Court of the United States IN RE: AVANDIA MARKETING, SALES PRACTICES & PRODUCTS LIABILITY LITIGATION: GLAXOSMITHKLINE LLC, Petitioner, v. ALLIED SERVICES DIVISION WELFARE FUND, UFCW LOCAL 1776 AND PARTICIPATING EMPLOYERS HEALTH AND WELFARE FUND, AND UNITED BENEFIT FUND, Respondents. On Petition For A Writ Of Certiorari To The United States Court of Appeals For the Third Circuit PETITION FOR A WRIT OF CERTIORARI Nina M. Gussack John H. Beisner Anthony C.H. Vale Counsel of Record Yvonne M. McKenzie Jessica D. Miller PEPPER HAMILTON LLP Geoffrey M. Wyatt 3000 Two Logan Square SKADDEN, ARPS, SLATE, Eighteenth & Arch Streets MEAGHER & FLOM LLP Philadelphia, PA 19103 1440 New York Ave., NW (215) 981-4000 Washington, DC 20005 (202) 371-7000
[email protected] Attorneys for Petitioner i QUESTIONS PRESENTED This case involves claims by third-party payors (“TPPs”) that they overpaid for Avandia, a prescrip- tion diabetes medication manufactured by petitioner, GlaxoSmithKline (“GSK”). The TPPs claim that GSK failed to disclose risk information, entitling them to recovery under the Racketeer Influenced and Corrupt Organizations Act, even though they do not allege that Avandia was ineffective; that it injured any one of their plan participants; or that they stopped cover- ing it after learning about the drug’s alleged risks. The Third Circuit nevertheless held that the TPPs could plausibly allege that GSK’s representations had an “inflationary effect” on the drug’s price. In so ruling, the Third Circuit expressly declined to follow the Eleventh Circuit, which had previously rejected similar claims, and also departed from several other appellate decisions rejecting similar “fraud on the market” theories.