As previously reported here, the U.S. Supreme Court heard oral arguments in Wyeth v. Levine on November 3, 2008. The case involves the question of whether the Food and Drug Administration’s (“FDA”) regulation of prescription drug labeling pursuant to Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. (“FDCA”) preempts state common law tort claims. To date, the Supreme Court has not released its decision.

Recently, Wyeth’s attorney sent a letter to the Supreme Court stating that Wyeth will be acquired by Pfizer, in which Chief Justice John Roberts, Jr. reportedly owns stock. As such, there has been speculation that the acquisition may prompt Chief Justice Roberts to recuse himself from the decision since the outcome of Wyeth v. Levine arguably might affect the value of Wyeth and, in turn, Pfizer. Of note, Chief Justice Roberts has already recused himself from numerous cases based on his stock ownership.

However, Wyeth's attorney noted that the acquisition would not be completed until at least July 31, 2009, weeks after the decision in Wyeth v. Levine will be released. Therefore, he stated that he did not believe that Wyeth’s corporate disclosure statement, submitted when Wyeth petitioned the Supreme Court, would have to be amended. The corporate disclosure statement informs the justices of parent companies and subsidiaries of companies involved in Supreme Court cases, and normally forms the basis for decisions as to whether recusal is required due to stock ownership.