Pharmaceutical Research and Manufacturers of America v. Brown et al

Filing 100

ORDER signed by Senior Judge Morrison C. England, Jr. on 6/16/2021 GRANTING 94 Motion for Certification of Interlocutory Appeal. Pursuant to Federal Appellate Rule 5(a)(3), the Court hereby amends its 1/4/2021, Memorandum and Order to grant PhRM A permission to appeal and state that the Order satisfies the necessary conditions for an interlocutory appeal under 28 U.S.C. § 1292(b). This case is STAYED pending resolution of a petition for permission to appeal to the Ninth Circuit Court of Appeals and any subsequent appellate proceedings. Not later than ninety (90) days following the date this Order is electronically filed, and every ninety (90) days thereafter until the stay is lifted, the parties are directed to file a Joint Status Report advising the Court as to the status of the proceedings before the Ninth Circuit. CASE STAYED. (Zignago, K.)

Case 2:17-cv-02573-MCE-KJN Document 100 Filed 06/17/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PHARMACEUTICAL RESEARCH AND
MANUFACTURERS OF AMERICA,
Plaintiff,

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v.

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No. 2:17-cv-02573-MCE-KJN

ORDER

ROBERT P. DAVID, in his official
capacity as Director of the California
Office of Statewide Health Planning
and Development,

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Defendant.

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Through the present action, Plaintiff Pharmaceutical Research and Manufacturers

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of America (“PhRMA” or “Plaintiff”) seeks a declaration that Section 4 of a California law,

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Senate Bill 17 (“SB 17”), which imposes various notice, reporting, and justification

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obligations on the manufacturer of a prescription drug sold to certain purchasers, is

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unconstitutional. PhRMA seeks injunctive relief preventing implementation of SB 17 by

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Defendant Robert P. David, Director of the Office of Statewide Health Planning and

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Development (“OSHPD” or “Defendant”).1 This Court recently denied PhRMA’s motion

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for summary judgment. PhRMA now seeks leave to pursue an interlocutory appeal of

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///

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Elizabeth Landsberg has replaced Robert P. David as the Director of OSHPD.

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Case 2:17-cv-02573-MCE-KJN Document 100 Filed 06/17/21 Page 2 of 3

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that ruling pursuant to 28 U.S.C. § 1292(b). ECF No. 94 (“Motion”).2 For the reasons

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that follow, PhRMA’s Motion is GRANTED.3

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Pursuant to 28 U.S.C. § 1292(b), a district court may certify an order for

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interlocutory appeal if it (1) “involves a controlling question of law,” (2) there is

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“substantial ground for difference of opinion,” and (3) “an immediate appeal from the

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order may materially advance the ultimate termination of the litigation.” See Reese v. BP

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Expl. (Ak.) Inc., 643 F.3d 681, 687-88 (9th Cir. 2011); Fed. R. App. P. 5(a)(3).4 PhRMA

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has established each of these requirements here. First, the parties agree, as does the

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Court, that its ruling on summary judgment involved a controlling question of law.

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Second, resolution of the dormant Commerce Clause issue involved a “novel and difficult

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question[] of first impression” in this circuit, which leaves room for substantial difference

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of opinion as to its resolution. See Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir.

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2010). Indeed, as PhRMA highlights, there is potentially conflicting Fourth Circuit

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authority on this issue, although this Court believes it to be distinguishable. Cf. Ass’n for

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Accessible Meds. v. Frosh, 887 F.3d 664 (4th Cir. 2018), cert. denied, 139 S. Ct. 1168

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(2019). Finally, the Court again agrees with the parties that resolution of an interlocutory

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appeal will wholly advance this case, which is still in its infancy (e.g., no discovery has

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been conducted and no trial is set), as well as a separate federal case pending in the

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District of Oregon that has been stayed pending this Court’s resolution of PhRMA’s

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dormant Commerce Clause challenge. See PhRMA v. Stolfi, No. 6:19-cv-01996-AA

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(D. Ore. Mar. 9, 2020).

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In consideration of the foregoing, PhRMA’s Motion for Certification of Interlocutory
Appeal (ECF No. 94) is GRANTED. Pursuant to Federal Appellate Rule 5(a)(3), the
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Because oral argument would not have been of material assistance, the Court ordered this
matter submitted on the briefs. ECF No. 95; see E.D. Cal. Local Rule 230(g).
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The parties and the Court are intimately familiar with the factual and procedural background of
this case as well as the legal issues. Accordingly, they are not recounted here.
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PhRMA argues that their Motion was timely filed eighteen (18) days after denial of the Motion for
Summary Judgment. Motion, at 4 n.1. The Court concurs, and the matter will thus not be discussed
further.

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Case 2:17-cv-02573-MCE-KJN Document 100 Filed 06/17/21 Page 3 of 3

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Court hereby amends its January 4, 2021, Memorandum and Order to grant PhRMA

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permission to appeal and state that the Order satisfies the necessary conditions for an

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interlocutory appeal under 28 U.S.C. § 1292(b) as set forth above. This case is

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STAYED pending resolution of a petition for permission to appeal to the Ninth Circuit

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Court of Appeals and any subsequent appellate proceedings. Not later than ninety (90)

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days following the date this Order is electronically filed, and every ninety (90) days

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thereafter until the stay is lifted, the parties are directed to file a Joint Status Report

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advising the Court as to the status of the proceedings before the Ninth Circuit.

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IT IS SO ORDERED.
Dated: June 16, 2021

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