Pfizer defends appellate court’s ‘naming names’ rule in lawsuit over diversity program
The opinions expressed here are those of the author, a columnist for Reuters.
By Alison Frankel
July 2 (Reuters) -Pfizer on Monday urged a U.S. appeals court not to revisit its decision to bar an anti-affirmative action group's challenge to the pharma company's diversity fellowship because the group failed to name people who had allegedly been harmed.
The group, Do No Harm, sought to shut down the five-year fellowship program, which Pfizer PFE.N designed to help the company recruit, train and retain Black, Latino and Native American leaders. In March, a three-judge panel at the 2nd U.S. Circuit Court of Appeals affirmed the dismissal of Do No Harm’s lawsuit, holding that Do No Harm failed to establish a constitutional right to enjoin the program on behalf of its allegedly injured members.
The 2nd Circuit set a new rule in the Pfizer case: If an organization like Do No Harm seeks an injunction on behalf of allegedly injured members, it must disclose the name of at least one of those members to the court to establish its so-called associational standing.
Providing a name, according to the 2nd Circuit, proves that someone from the group has truly been harmed by the challenged policy. It “does not merely check a box; it is a demonstration of the sincerity of the member's interest,” the opinion said.
That rule, as I’ve told you, divided the 2nd Circuit panel that heard the Pfizer case. In a concurrence, Judge Richard Wesley said he agreed that bare-bones declarations from Do No Harm’s allegedly injured members were not enough to give the group a right to sue to enjoin Pfizer’s program. But Wesley warned that the majority’s naming rule would “constrict access to the courts” for all kinds of groups, regardless of their ideology.
Do No Harm, which says its mission is “to protect healthcare from radical, divisive and discriminatory ideologies," immediately asked the full 2nd Circuit to rehear its case. With backing from several other conservative groups, Do No Harm’s lawyers from Consovoy McCarthy argued that the 2nd Circuit’s naming rule conflicts with U.S. Supreme Court precedent — including a landmark 1958 decision allowing the NAACP to shield information about its membership from Alabama state officials — and with rulings from the 10th and D.C. Circuits in analogous cases.
After Do No Harm and its supporters filed their initial briefs, the 11th Circuit rejected the 2nd Circuit’s naming requirement in a decision barring a venture capital fund from making grants to small businesses owned by Black women. The Atlanta-based appeals court held that two-page declarations from anonymous members of the American Alliance for Equal Rights were sufficient to establish the anti-affirmative action group’s constitutional right to seek an injunction.
Even a dissenting judge in the 11th Circuit case said she would not have required the American Alliance to disclose the names of its allegedly injured members, although she said the members’ nearly identical declarations were too generalized to prove they suffered harm from the grant program’s rules.
Do No Harm notified the 2nd Circuit of the 11th Circuit decision, arguing that the June ruling deepened a split between the 2nd Circuit and every other federal appellate court to have considered whether groups must name injured members to establish their right to seek an injunction.
But in Monday’s brief, Pfizer told the 2nd Circuit that all of those other cases are distinguishable. In one case, Pfizer said, the D.C. Circuit said a labor union did not have to name allegedly injured members to seek an injunction because the detailed administrative record in the case offered ample, specific assertions about their injuries — precisely the specificity missing in declarations from Do No Harm members.
And while the cases before 10th and 11th Circuits paralleled the posture of the 2nd Circuit’s Pfizer case, the company said, those circuits apply a looser test than the 2nd Circuit for standing to pursue injunctions.
The 2nd Circuit's high bar for the right to seek a preliminary injunction, Pfizer said, requires plaintiffs to offer the same specific evidence they’d have to provide in a summary judgment motion. The 10th and 11th Circuits, on the other hand, require plaintiffs only to meet the initial pleading standard, Pfizer said.
“Those different approaches long predate the panel’s decision here,” Pfizer said, arguing that Do No Harm has only its own "miscalculated" litigation strategy to blame for its failed lawsuit.
Pfizer’s lawyers at Paul, Weiss, Rifkind, Wharton & Garrison and DLA Piper also argued that the 2nd Circuit’s naming requirement is neither unprecedented nor (quoting Do No Harm) “devastating.”
The group has conceded that it would likely have to reveal the names of its allegedly injured members to the court as part of the discovery process if the case moved forward, Pfizer said. So its protests about disclosing a name in earlier stages ring hollow.
Do No Harm counsel Cameron Norris of Consovoy McCarthy did not respond to a query on the Pfizer brief.
Pfizer moreover told the 2nd Circuit that the appeals court should not dedicate additional time into a case that is likely moot, given that the company has said the fellowship is open to all candidates and that, under the original design of the program, 2025 is the final year for applications.
“No further review is warranted,” Pfizer said in an email statement. “Pfizer is an equal opportunity employer and is proud of its commitment to diversity, equity and inclusion.”
The 2nd Circuit is notoriously stingy about rehearing cases as a full court, so odds are against Do No Harm getting another shot before the New York-based judges.
But it’s a good bet that if the 2nd Circuit leaves the panel ruling intact, Do No Harm will head to the Supreme Court with arguments about a circuit split on naming names to establish associational standing. Pfizer’s new brief, in other words, may just be a preview of arguments yet to come.
Read more:
Justice Clarence Thomas casts cloud over lawsuits challenging diversity programs
US appellate courts split on threshold for lawsuits challenging diversity programs
Conservative groups object to 'naming names' rule from Pfizer diversity decision
(Reporting By Alison Frankel)
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