Congress enacted the Federal Arbitration Act (FAA) in 1925 to foreclose judicial hostility to arbitration. 9 U.S.C. §1 et seq. Establishing a liberal federal policy favoring arbitration agreements, the FAA provides in relevant part: "A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The FAA codified the principle that arbitration is fundamentally a matter of contract. Absent a fatal infirmity to the contract itself, then, the FAA requires courts to enforce an agreement to arbitrate, according to its terms. See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. __, __ (2010) (slip op., at 17); Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989); Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221 (1985).
2013 may be remembered for the high profile gay, lesbian, bisexual and transgender (GLBT) issues that have played across national headlines. Consider the following. Two cases were argued before the Supreme Court in March with potential for landmark rulings on gay marriage, and for the first time, national polls show most Americans support giving gays the right to marry. In April, the Boy Scouts of America announced the group is considering dropping a hundred year old ban on gay members. Modern Family, which features a same s*x couple, has become one of the most watched television show in the country. And just this past Monday, National Basketball Association player Jason Collins made headlines when he became the first active professional athlete in a “major” North American team sport to come out publicly as gay. Based on these developments, we can assume GLBT individuals can go anywhere with ease, yes? Well, not so fast.
Thanks to the United States Supreme Court's recent decision in Mensing v. Pliva, litigants now enjoy some clarity regarding the fate of plaintiffs' claims against generic pharmaceutical manufacturers. And given the overwhelming rejection of the California Court of Appeals' decision in Conte v. Wyeth (at least until the Alabama Supreme Court's recent decision in Wyeth v. Weeks), branded manufacturers can predict that they are not likely to face liability under existing case law in a number of states when the plaintiff took only a generic competitor's medication. But what happens when a plaintiff took branded medication originally, switched to its generic bioequivalent, and then suffered the alleged injury? Despite the growing number of courts rejecting "innovator liability," case law to date has not addressed this scenario, due in large part to the fact that the vast majority of decisions addressing "innovator liability" have focused on metoclopramide, a medication that has been available in generic form for decades. Nevertheless, an increasing number of widely prescribed drugs that have been embroiled in litigation have now lost their exclusivity or will soon do so. As a result, cases in which the plaintiff started on the branded drug and switched to the generic have already been filed, and more are likely in the near future. This is particularly true where the drug in question is often prescribed over an extended period of time, making it more likely for the plaintiff to have started on the branded version of the drug.