Court denies request to retract gov’t press release about convicted biotech CEO

court caseA doctor and former biotech CEO lost his appeal yesterday to force the federal government to retract a press release that he claims contained errors that damaged his reputation.

But this case isn’t so straightforward — the press release in question described the verdict in a case against former InterMune CEO W. Scott Harkonen, who was convicted in 2009 of hyping the results from the company’s lung disease drug in….you guessed it, a press release.

Here’s more from the U.S. government’s description of the 2009 case:

Evidence at trial further showed that the defendant caused InterMune to issue a press release publicly announcing the results of a clinical trial of Actimmune for the treatment of [Idiopathic pulmonary fibrosis] on Aug. 28, 2002. Although the clinical trial in fact failed, Harkonen caused the issuance and distribution of a false and misleading press release to portray that the results of the trial established that Actimmune helped IPF patients live longer. Specifically, the press release’s headline falsely stated that, “InterMune Announces Phase III Data Demonstrating Survival Benefit of Actimmune in IPF,” with the subheading “Reduces Mortality by 70% in Patients With Mild to Moderate Disease.”

Harkonen disagreed with the government’s characterization, so tried to fight back, according to the Wall Street Journal Law Blog:

In court papers, Dr. Harkonen alleged that the Justice Department’s press release falsely stated that he “lied to the public about the results of a clinical trial.” To the contrary, he says, the government at trial repeatedly “conceded…that no test results were falsified, that the numbers in the press release were accurately stated, and that Dr. Harkonen was prosecuted solely for the conclusions drawn from those results.”

At first Dr. Harkonen tried to get the Justice Department to correct its press release by filing requests directly with the agency. He invoked a 2000 law passed by Congress, called the Information Quality Act, also known as the Data Quality Act.

Eventually, the case came down to interpretations of this Information Quality Act, said the WSJ:

So, the question in the case became whether the Information Quality Act gives the public the right to seek corrections of press releases.

The Ninth Circuit said the wording in the original statute is ambiguous, leaving it up to agencies to decide if press releases are correctable. As such, the court declined to strike down guidelines issued by the Office of Management and Budget and the Department of Justice that explicitly exclude information published in press releases.

“Congress left a gap in the [Information Quality Act] for OMB and DOJ to fill regarding the definition of ‘disseminated,’” wrote Ninth Circuit Judge John T. Noonan, Jr. “This analysis leads to the conclusion OMB’s and DOJ’s exclusion of press releases was not arbitrary and capricious, or manifestly contrary to the statute.”

You can read the decision here.

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