The Volokh Conspiracy

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Free Speech

Pharma Co. Suing American Society of Anesthesiologists, Seeking Removal of Criticisms in Anesthesiology Journal + Retraction

Pacira Biosciences, Inc. is suing over allegedly "false and misleading statements made about EXPAREL, a pain medication drug."


You can see the Complaint (filed in New Jersey federal court) and the press release—but not their brief explaining why they think they are entitled to a pretrial preliminary injunction, because that brief was filed under seal, though plaintiffs' counsel tells me that a very lightly redacted version will be available soon.

I obviously can't speak with any confidence about whether the allegations in the Anesthesiology article are true, or were said with the requisite mental state. But here are three legal observations:

  1. New Jersey law (and the First Amendment) seems to allow permanent injunctions requiring the takedown of material after it is found to be libelous at trial.
  2. In principle, libel lawsuits over academic research papers are potentially viable, especially if the court concludes that the papers included knowingly or recklessly false statements of fact, rather than just critical opinions or honest mistakes. (I oversimplify here slightly.) So are "trade libel" lawsuits, which are like libel lawsuits but allege damage to the reputation of a product rather than of a person or company.
  3. But pretrial injunctions are generally not allowed, and are indeed seen as quintessential "prior restraints," because they are entered prior to a conclusive decision that the material is indeed libelous.

I expect the District Court will be especially likely to reject a request for a takedown injunction (and the accompanying request for a retraction) in a case such as this, which is against a reputable establishment publisher. I don't think the defendant's identity should matter, but as a practical matter the First Amendment rules tend to be especially effectively policed when the defendant looks serious, plus I imagine these defendants will be well-represented.

This having been said, plaintiff is also well-represented, by megafirm Latham & Watkins (the fifth largest in the U.S.), so I do look forward to seeing their brief.