(Reuters) - The odds of persuading the U.S. Supreme Court to agree to review a case are never good. The court estimates that it receives about 7,000 petitions a year. This term, the justices are hearing fewer than 70 cases, which is a grant rate of less than 1 percent.
The easiest way to catch the justices’ attention, of course, is to ask them to resolve a split between the federal circuits on a particular issue. Pfizer and a bunch of other pharmaceutical companies that sell single-dose eye-drop medication for glaucoma patients certainly have that going for them. In a petition filed last week at the Supreme Court, the pharma companies highlight contrasting rulings by the 7th and 3rd Circuits in class actions based on nearly identical allegations. Last March, the 7th Circuit refused in Eike v. Allergan to allow glaucoma patients to move forward with claims they overpaid for the medication because the FDA-approved packages contained a bigger drop than patients needed. Seven months later, the 3rd Circuit reached the opposite conclusion in Cottrell v. Alcon, denying defendants’ motion to dismiss nearly identical claims. Pfizer and the other defendants want the Supreme Court to review the 3rd Circuit ruling.
But not every circuit split merits the justices’ time. Is the packaging of these eye drops an issue of national importance? And is it likely that lower courts will be called upon again to decide whether plaintiffs have a right to sue over the allegedly larger-than-necessary drops?
The challenge for the pharma companies’ Supreme Court counsel at Williams & Connolly is convincing the Supreme Court that the divide between the 3rd and 7th Circuits isn’t just about eye-drop packaging. They’ve answered the challenge by arguing that the eye-drop case implicates a constitutional concern: standing for class action plaintiffs suing over supposedly speculative injuries. According to the petition for certiorari, the question the case presents is whether plaintiffs meet constitutional standing requirements by theorizing that they might have paid less for medication if it were packaged differently.
“This is the rare case in which the court is asked to resolve a circuit conflict on a question of constitutional law in cases involving essentially identical facts and overlapping parties,” the petition said, calling uncertainty over an allegedly speculative economic injury “an obviously important question of constitutional law.”
As you know, the Supreme Court has recently wrestled with constitutional standing and speculative injuries in 2013’s Clapper v. Amnesty International and 2016’s Spokeo v. Robins. That might seem like an auspicious omen for Pfizer and the other eye-drop makers, which contend that the 3rd Circuit’s ruling is at odds with the Supreme Court’s holdings in both Spokeo and Clapper.
The justices, however, have conspicuously refused to revisit questions about standing and class actions in two cases this term. The Supreme Court denied review to the health insurer CareFirst, which claimed the circuits were divided over standing for data breach victims alleging an increased threat of identity theft; and to the search engine Spokeo, which argued that the justices should clarify their holding in its case because the lower courts haven’t applied it uniformly.
Neither CareFirst nor Spokeo could cite as decisive a circuit split as the divide between the 3rd and 7th Circuits in the eye-drop litigation, but their petitions pitched issues that lower courts confront all the time. It will be interesting to see if Pfizer’s narrower call for review succeeds where CareFirst and Spokeo failed.
Leah Nicholls of Public Justice argued for the proposed class of glaucoma patients at the 3rd Circuit. She was unavailable to comment on the Pfizer petition.
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