High-Stakes Gilead Case Lands Fish & Richardson Principals Juanita Brooks and Jon Singer on The Recorder's List of Litigation Game Changers

Turning a potential $2 billion verdict on its head has landed Fish & Richardson principals Juanita Brooks and Jon Singer on The Recorder's annual list of Game Changers. The Recorder is an ALM publication based in San Francisco.

Serving as co-lead plaintiff's counsel in Gilead Sciences Inc. v. Merck & Co., regarding Gilead's multibillion-dollar Hepatitis C drugs Sovaldi and Harvoni, Brooks and Singer reduced a potential $2 billion verdict for Merck to a $200 million jury award, but they didn't stop there. They converted the award to a post-trial wipeout of the entire verdict and obtained $14 million in attorney's fees for their client Gilead.

The San Diego-based principals are no strangers to a challenge. Brooks and Singer, head of the firm's life sciences practice, rally time and again to deliver big wins for their clients. Their ability to cultivate a global litigation strategy and turn losses into wins is perfectly evidenced by their eventual toppling of the $2 billion verdict what would have been the single largest patent damages award in U.S. history.

At stake in the case were Gilead's groundbreaking Hepatitis C drugs two of the highest-selling drugs in the world that mark the first time that a cure for a virus has been developed since the polio vaccine.

Fish client Gilead filed suit in 2013 after Merck requested that Gilead license two patents. Gilead sought declaratory judgment that Merck's patents were invalid and its products did not infringe. Merck fired back, alleging infringement and demanding $2 billion in damages. A jury sided with Merck in March 2016. However, in the trial's damages phase, Brooks and Singer convinced the jury to award Merck less than 1/10th of their demand. Merck was awarded only $200 million. Brooks and Singer were just getting started.

In June 2016, Brooks and Singer delivered the stunning argument that Merck's in-house lawyer used confidential information from private licensing negotiations in 2004 during the drug-development phase to draft the patent claims at issue. A California federal judge found that Merck forfeited its right to assert its Hepatitis C drug patents against Gilead due to having "unclean hands." The court ultimately wiped out the $200 million damages award after holding the unethical behavior was compounded when Merck's outside counsel attempted to cover it up by sponsoring false testimony.

In July, Merck was ordered to pay Gilead $14 million in attorney's fees, concluding the fees were reasonable "based on the amount at stake in this case, the complexity of the issues, and the results Fish has achieved for Gilead."

The award winners were recognized at an event at the Hilton San Francisco on Thursday, Nov. 16.