May 21, 2015

1st Circ. Strengthens Preemption For Brand-Name Drug Cos.

A February appellate court decision in Marcus v. Forest Pharmaceuticals upheld the dismissal of putative class action claims against the manufacturers of the anti-depressant drug Lexapro. In an article published in Law 360, FaegreBD attorneys Joe Winebrenner and Nick Teichen explained how the ruling indicates a significant shift in how courts apply “impossibility” preemption clauses to consumer protection suits involving brand-name pharmaceuticals.

“The reasoning of the decision should have a practical impact that extends well-beyond the facts of the case,” Winebrenner and Teichen said. “[The ruling] should bolster preemption arguments in other contexts where FDA involvement is required before manufacturers are authorized to take action.”

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