Wyeth Pharmaceuticals, Inc.; Pfizer Inc. and Pharmacia & Upjohn Company v. Nevada

Case Updates

In their brief, the U.S. Chamber of Commerce and the American Tort Reform Association urged the Nevada Supreme Court to grant review of this case and enforce prohibitions on the Nevada Attorney General's use of private attorneys to prosecute actions under the State's Deceptive Trade Practices Act. Nevada's attempt to vest self-interested private lawyers with the authority to enforce state law is contrary to legal and government ethics, constitutional law, and sound public policy. Delegating the enforcement of state law, including imposition of penalties, to self-interested, private attorneys places impartial governance in irreconcilable conflict with profit motive. Nevada's legislators ensured that enforcement of state law remains the providence of public officials.

Nevada law unambiguously prohibits the State from hiring outside counsel absent a conflict of interest that precludes the state from using its own lawyers or specific authorization from the legislature. The state Attorney General has attempted in this case to deputize a private law firm to investigate and prosecute actions, and empowered the firm to seek quasi-criminal remedies available only to the state. The Attorney General has agreed to compensate the firm based on the amount of recovery collected. This arrangement, which gives private attorneys a multi-billion dollar stake in maximizing penalties, regardless of whether the defendants' conduct warrants such punishment, is in clear violation of the law and has substantial implications for those who do business in Nevada.

Victor E. Schwartz and Cary Silverman of Shook, Hardy & Bacon LLP and Jeffrey F. Barr of Ashcraft & Barr LLP represented the U.S. Chamber and ATRA as co-counsel to the U.S. Chamber Litigation Center.