Mylan Bullies the Post-Gazette

Say what you will about the Post-Gazette, when bullies are trying to knock it down, you have to hope that the PG will kick sand -- and more -- in the bullies' face.

The bully of the day is Mylan, the West Virginia company that sued the Post-Gazette yesterday over the PG's reporting a month ago of quality control problems in Mylan manufacturing. (My Pittsblog post describing the PG's work is here.) So far as I can tell, Mylan is smarting over the disclosure of the incident, not over alleged falsity in the reports. And Mylan is no doubt still smarting over the PG's earlier investigation of Heather Bresch, now the company's president, and her receipt of an executive MBA under dubious circumstances from West Virginia University.

The irony, of course, is the Mylan makes generic pharmaceuticals -- meaning that in this age of debates over the high cost of health care, it should be riding high as a friend of consumers. Instead, just about the only time I read about Mylan is when it is in the middle of a PR imbroglio that is largely of its own making.

The lawsuit against the Post-Gazette was filed in West Virginia state court, which the company no doubt hopes will provide a friendly hometown forum. The recent Caperton litigation suggests that in West Virginia, that's not entirely wishful thinking. But Mylan has hedged its bets; it hired Pittsburgh's Pietragallo Gordon Alfano Bosick & Raspanti to represent it.

Legally, while yesterday was just Day One of the case, I have to think that on the merits it's a complete loser. According to media reports, here is no allegation that the paper published anything false about Mylan. According to the complaint,
"The article also contains numerous statements that adversely affect the business reputation of Mylan; impugn the integrity of its manufacturing and quality control procedures; impugn the integrity of management personnel; and thereby threaten current and prospective business relationships in the highly competitive market of generic pharmaceuticals," the suit states. It goes on to say the Post-Gazette story and follow-up articles are "sensational and misleading articles based on improperly obtained and misconstrued confidential, proprietary and/or privileged internal documents" creating the "false appearance" of quality and regulatory issues.
(I'm quoting from this news report.) That key paragraph contains a lot of nasty sounding words ("confidential," "proprietary," "privileged," "impugn," "misleading"), but it doesn't contain the ones that are usually key to successful lawsuits against newspapers: "false," "reckless," and "malice." It reads to me like a complaint that throws up a lot of smoke to get around the difficult fact that there isn't a lot of fire, at least not at the Post-Gazette. It reads to me like the Post-Gazette got the facts right.

Mylan is no doubt hoping that "pressure" will motivate the PG to call off its investigative team, Len Boselovic and Patricia Sabatini.

Mylan also may want more than to get the PG off its back. Jim Edwards at bnet thinks that Mylan is after its own people, who may have shared internal information with the PG. Sources, in other words, that no self-respecting newspaper or reporter will give up voluntarily -- and many will not give up even involuntarily. (Toni Locy, among the most recent reporters to face punitive sanctions for refusing to disclose source, taught recently at WVU.) Edwards also suspects that the lawsuit may be motivated by financial losses suffered by Mylan's Chairman and CEO, Robert Coury, and by the wish to preempt a possible libel claim against the PG's team against him.

Mylan has money, time, and the home court advantage. The PG is in a world of hurt and has better things to do, one might think, than pay its lawyers. But I'm guessing and hoping that John Block thinks otherwise, and I'm guessing and hoping that friends of the press and friends of the First Amendment will come quickly and materially to his aid.

Back in July, I wrote that the PG's latest look at Mylan " should justify the cost of a subscription over the next several weeks." Looks like I was right.

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Pittsblog 2.0 is written by Mike Madison, a law professor at the University of Pittsburgh. Send email to michael.j.madison[at]gmail.com. Mike also blogs at Madisonian.net, on law and technology. Chris Briem of Null Space drops by from time to time.

All opinions expressed at Pittsblog 2.0 are those of their respective authors and of no one (and no thing) else, least of all the University of Pittsburgh.

Pittsblog 2.0 has a motto: "It's steel good in Pittsburgh." Say it aloud, with a Pittsburgh accent.

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