Appeals court upholds BD win in Retractable Technologies case

A federal appeals court this week upheld a ruling that Becton Dickinson (NYSE:BDX) owes nothing more in a long-running false advertising claims case brought by Retractable Technologies (NYSE:RVP).

The dispute dates back to 2001, when Little Elm, Texas-based RTI sued BD for patent infringement; that case settled for $100 million in 2004. RTI sued again barely three years later, alleging further patent infringement and anti-trust violations. That case was split, with the anti-trust portion stayed while the patent infringement claims were litigated; in July 2011 a federal appeals court decided that case.

The anti-trust phase began in 2010; eventually BD was found to have made false claims about some of its safety syringes. In September 2013 a jury found for RTI, awarding $113.5 million after finding that BD violated the Lanham Act’s false advertising rules, the Eastern Texas court later trebled that amount, ordering the company to pony up more than $352.2 million in damages.

In December 2016 the U.S. 5th Circuit Court of Appeals overturned the anti-trust ruling but upheld the false advertising claim, sending it back to the U.S. District Court for Eastern Texas for a decision on how much profit BD must disgorge. The Eastern Texas court found the following August that BD needn’t disgorge any more profits to RTI and that prior court rulings already gave adequate relief.

RTI appealed that decision to the 5th Circuit, which in a split decision March 26 upheld the lower court’s ruling.

“The district court’s denial of disgorgement of profits from RTI’s competitor was made against the larger backdrop of its prosecution of a meritless antitrust claim against BD for conduct in the marketplace – during a time in which RTI nearly doubled its own sales and increased its share of the retractable syringe sub-market to two-thirds,” Judge Patrick Higginbotham wrote for the majority. “RTI elected not to test its proof of Lanham Act damages before the jury, but rather to later argue, as now, that equity mandates disgorgement. Its effort to carry the flag of “public interest” and guide the profits of its competitor to its own coffers here must fail. That effort must be taken outside—to the marketplace. There the public interest is best vindicated. The district court did not abuse its discretion.”

Judge James Graves Jr. dissented on the grounds that the Eastern Texas court misjudged how much of RTI’s sales were diverted by BD’s false claims and erred in not finding enough evidence for giving up some profits to RTI.

RTI said it’s evaluating the ruling huddling with its lawyers “regarding possible future action.”

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