Will Roberts Recuse Himself If Bayer Case Reaches Supreme Court?

Last Updated Jul 8, 2009 11:50 AM EDT

The Justice Department has joined the chorus of those arguing that pay-to-delay settlements between branded and generic pharma companies are anti-competitive and illegal. The forces seem to be gathering for a review by the U.S. Supreme Court, which has thus far declined to hear the issue. Bloomberg:
The department, in a filing yesterday with the 2nd U.S. Circuit Court of Appeals in New York in a case involving Bayer AG and the anthrax treatment Cipro, said courts should presume that a "pay for delay" or "reverse payment" agreement is illegal and should force the drug companies to justify why the deal was reached.
That raises a question: If pay-to-delay reaches the Supremes, will any of the justices recuse themselves from the case because they own pharma stock; and if so, will that affect the ultimate decision?

We know that Chief Justice John Roberts owns Pfizer stock (and we also know that he declined to recuse himself in Wyeth v. Levine even though the decision came after Pfizer's acquisition of Wyeth). So he is one justice whose stock may decline if generic companies benefit from a ruling ending pay-to-delay. Of course, as Pfizer is about to launch a big push into generics, one can make the opposite -- and equally recusal-worthy -- argument.

Unfortunately, the justices' financial disclosure forms are not on the federal courts' administrative website -- even though it is public information -- so we don't know much more about their holdings (help, readers!). We do know this:

Justice Stephen Breyer and Chief Justice John Roberts, with assets from $2.4 million to $6.2 million, have wide-ranging stock holdings that include media, bank and technology companies.

Justice Samuel Alito reported assets of $770,000 to $2 million. His most valuable investments are several Vanguard mutual funds and Exxon Mobil stock worth $100,000 to $250,000 each.

And that nominee Sonia Sotomayor's holdings are deminimus. That's important because by the time the lower courts are done dealing with Bayer Cipro case, she might be on the panel when it arrives (again) at the top level.