Last night we wrote about a high-profile lawsuit: 3M v. Lanny Davis. Yes, that’s right: the maker of Post-its and Scotch tape is going after Lanny J. Davis, the noted D.C. lawyer and lobbyist, along with his client, Porton Capital (a group of private investors).
It’s a strange lawsuit, but the allegations in it aren’t new. Similar suits were filed by 3M in June and July, in New York state court. (And one of them is still pending, despite the filing of an action in D.C. federal court.)
The primary parties, 3M and the Porton Group, have crossed swords before. In fact, they’re litigating against each other right now in merry olde England, before the High Court in London. In the U.K. litigation, 3M is being sued by Porton Capital and by the British government (in the form of Ploughshare Innovations, an entity owned by the U.K.’s Ministry of Defence).
According to the Wall Street Journal, Porton and Ploughshare allege that 3M failed to diligently develop the BacLite testing technology, “a product already proved and used in Europe as a cheap and quick way of detecting methicillin-resistant staphylococcus aureus, commonly known as MRSA, a hospital infection.” The reason this is so upsetting to Porton and Ploughshare is that they were contractually entitled to receive royalties from 3M’s sales of BacLite. The plaintiffs in the U.K. case claim that 3M abandoned BacLite less than a year after buying it — after botching the BacLite trials, and declaring the testing technology non-viable — “in order to protect a 3M-developed detection product known as Fastman from the less expensive rival posed by BacLite.”
Got that? Okay. Now, some updates to our prior coverage….
UPDATE (9/2/11, 9:30 AM): An update to our updates: a statement from William A. Brewer III, counsel to 3M, has been added below.
1. In case you missed it, we updated our prior post with a statement from Lanny Davis and the Porton Group. (We’ve also reprinted that statement at the very end of this post).
2. Lanny Davis also had this to say about the substance of the defamation / “smear campaign” allegations in the lawsuit (PDF):
[M]y statements on which they based a charge of “smear” were at a press conference in which I filed a request for the FDA to investigate 3M’s failure to obtain FDA approval [for BacLite], obtaining only 50% reliability results vs. the 95% results that were achieved when the EU gave regulatory approval on that basis.
Note that the British MoD [Ministry of Defence] invented this MRSA “super bug”/staph infection detection device and 3M approached them and purchased it with a promise to market it in Europe, the U.S., Australia, and Canada. The EU had already approved it after the 95% tests. But 3M pulled out after they failed to get FDA approval when they could only achieve 50% reliability. Their attorney has been quoted as saying that the results in the U.S. showed the product was unreliable – a “coin flip” (or 50-50).
This is misleading at best. What he doesn’t say is that the EU tests that led to regulatory approval achieved 95%, and 3M’s own Technical Advisory Committee found the 50% reliability in the US trials was a result of refrigerating the petri dish testing reliability at 95 degrees F rather than 98.6, and using a different comparator growth solution than the one used in the EU (the one used in the EU was approved by the FDA; 3M did not choose to use the same one that achieved 95% reliability).
So this is missing from your story — what they call a “smear campaign” is my holding a press conference about a petition to the FDA asking for an investigation as to why 3M achieved only 50% results, and based on their own Committee’s report (which was kept secret at the time of the press conference) showing the inferior results were their own doing.
3. Paragraphs 30 and 31 of the complaint claim that Lanny Davis represented Laurent Gbagbo, former president of the Ivory Coast, “who lost an election in late 2010 but refused to relinquish power.” Lanny Davis told us:
I never represented or defended Laurent Gbagbo. I represented the Ivory Coast Embassy in D.C., and although I agreed to “present” Gbagbo’s version of why he thought he won the election, behind the scenes I was actually working closely with a senior official at the State Department (behind the scenes, with the knowledge of the Ivory Coast Embassy) to help find a peaceful solution, such as Gbagbo’s peaceful transition – as was stated by the State Dept spokesperson, P.J. Crowley, who said on January 1, in Politico, in Mike Allen’s column:
“Certainly, Lanny was helpful. He did open another alternative channel of communications for us, and was providing the right advice to his client. President Gbagbo has declined to engage our ambassador, Phillip Carter. Absent that avenue, Lanny became another route to encourage President Gbagbo to leave. Unfortunately, every indication is that his client wasn’t heeding his advice….”
In fact, I resigned entirely this Ivory Coast work after 10 days after the formal engagement by the Embassy, as has also been published all over, after the State Department asked me to try to arrange, through the D.C. Embassy, a phone call between President Obama and Gbagbo and Gbagbo refused to accept the call.
Since you mentioned Gbagbo, I would appreciate your publishing a correction to their misleading reference to my representation in the complaint.
3. Finally, a quick correction: the original version of our story identified “William A. Bickel III, name partner at Bickel & Brewer,” as counsel to 3M. That was a typo; there is no “William A. Bickel III.”
We have corrected the reference to “William A. Brewer III, name partner at Bickel & Brewer.” The other name partner is John W. Bickel II. (We had this correct in the tags to the post, but not in the text of the story.)
We’ll keep an eye on this litigation, both here in the U.S. and over in the U.K. as well.
UPDATE (9/2/11, 9:30 AM): On the issue of New York versus D.C. as the forum for this litigation, we’ve obtained additional statement from Bickel & Brewer.
“The defendants have filed a dilatory motion in New York which complained about that forum,” said William A. Brewer III, partner at Bickel & Brewer and counsel for 3M. “Rather than tolerate the delays associated with that debate, we re-filed the case in Washington, D.C. — the concededly appropriate forum — in order to expedite our client’s right to commence discovery. As we have stated repeatedly, our clients are anxious to push this case forward as quickly as possible.”
U.K. Takes Legal Action Against 3M [Wall Street Journal]
Court Trial To Start Over 3M’s Decision to Kill Superbug Test [Wall Street Journal]
Porton Group and Lanny Davis Respond to 3M’s Third Attempt To Sue Them after 3M’s Prior Two Attempts in New York Failed [PRNewswire]
PORTON GROUP AND LANNY DAVIS RESPOND TO 3M’S THIRD ATTEMPT TO SUE THEM, AFTER 3M’S PRIOR TWO ATTEMPTS IN NEW YORK FAILED
London – The Porton Group and its attorney Lanny Davis offered comments today regarding 3M’s effort to change the venue of its lawsuit against them after a New York court ruled that 3M’s prior complaints were “devoid of any monetary demand.”
3M has now hired its third law firm to try for a third time to move forward with its truly ridiculous claims. When Porton and Mr. Davis moved to dismiss 3M’s claims from the New York court, 3M did not even file a response; 3M simply gave up. After a New York judge ruled this month that 3M’s complaint was “devoid of any monetary demand,” 3M is now shopping for a more receptive audience from a different court in Washington, D.C.
Porton Group CEO Harvey Boulter said, “3M is desperately looking for a way out of Porton’s breach of contract trial in which the English court will issue its judgment soon. 3M is wrongfully using the American court system to harass and launch public attacks against Porton and its attorney, Mr. Davis, in the hopes that they will back down from their claims that 3M breached its contractual obligations to market BacLite, a potentially life-saving product for victims of the MRSA superbug.”
Porton’s corporate attorney Lanny Davis said, “3M and its attorneys have now filed the same suit for the third time — this time in DC. That is indicative of the lack of thoughtfulness of its case. But no matter how many times they file meritless lawsuits against my client and me as its attorney, they can’t change the subject or the facts about their unwillingness to fulfil their contractual commitments, which is now the subject of an ongoing trial in England.”
Mr. Boulter and Mr. Davis both expect that 3M’s latest lawsuit in Washington D.C. will fail, just as its prior two efforts failed in the New York court.