The Investors’ Control of Their Investment Advisers. Who Has the Final Word?

TAMAR FRANKEL

BU Law emerita professor Tamar Frankel discusses an emerging issue affecting financial advisers—when a client may exercise control over the actions of the adviser. Frankel relates the story of an investment adviser that did not follow the client’s orders to cease certain investments, at a cost of almost $5 million to the client. As Frankel explains, the Securities and Exchange Commission (SEC) got involved, resulting in the investment adviser’s settlement for a significant payment to the client and other conditions.

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In re Lantus Direct Purchaser Antitrust Litigation

Docket: 18-2086

Opinion Date: February 13, 2020

Judge: William Joseph Kayatta, Jr.

Areas of Law: Intellectual Property, Patents

The First Circuit held that Sanofi-Aventis U.S., LLC improperly submitted a patent for listing in "the Orange Book" and that Sanofi was potentially liable under the antitrust laws to drug purchasers who were allegedly harmed by the effective extension of Sanofi's monopoly. At the center of this appeal was a publication maintained by the FDA called Approved Drug Products with Therapeutic Equivalence Evaluations, known as "the Orange Book," which lists patents said by their owners to claim FDA-approved drugs. When a patent is listed in the Orange Book the patent-owning drug manufacturer has the ability to trigger an automatic, thirty-month suspension of the FDA's approval of a competing product. Plaintiffs alleged that Sanofi artificially restricted competition in the market for insulin glargine by improperly listing a certain patent in the Orange Book, thereby delaying competition in the insulin glargine market and resulting in inflated prices. The district court dismissed Plaintiffs' Sherman Act claims. The First Circuit vacated the dismissal as to Sanofi's alleged improper Orange Book listing of the patent, holding that Sanofi improperly submitted the patent for listing in the Orange Book and that Sanofi potentially liable under the antitrust laws to drug purchasers who were allegedly harmed by the effective extension of Sanofi's monopoly.