The Volokh Conspiracy

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Free Speech

Pharma Co. Seems Ready to Withdraw Request for Preliminary Injunction to Take Down Anesthesiology Journal Articles

The case is Pacira BioSciences v. American Society of Anesthesiologists, a trade libel lawsuit filed over journal articles and other publications questioning the efficacy of Pacira's pain-killer Exparel.


I blogged two weeks ago about the lawsuit, and the motion for preliminary injunction; I noted that preliminary injunctions in libel cases are generally seen as unconstitutional "prior restraints," even if a permanent injunction following a trial might be permissible. (I expressed no opinion on whether the plaintiff would indeed be able to prove trade libel at trial.)

Just this morning, Pacira's lawyers (from the megafirm Latham & Watkins) filed a letter suggesting that they're likely to withdraw the motion for preliminary injunction:

The parties agree on two important things: (1) that the parties are ready to address the merits of Pacira's trade libel claim and (2) to do so swiftly. The only difference in the  parties' proposals is that Defendants request discovery and a preliminary injunction hearing now, while Pacira is seeking final resolution more efficiently. A preliminary injunction will not bring final resolution to the matter, so Defendants' proposal would presumably be followed by additional discovery and eventually a permanent injunction hearing.

Since both parties want this resolved as soon as possible, Pacira proposes to forego consideration of a preliminary injunction and move directly to determination of a permanent injunction, with expedited discovery and determination. Discovery and briefing on damages would follow a resolution of the issues relating to liability.

Sounds like a good move to me.