Warner-Lambert Co. v. Kent: The Supreme Court Splits 4-4 and Leaves the “Fraud-on-the-FDA” Landscape Unclear

March 05, 2008
The eagerly awaited Kent ruling was expected to resolve a split among the federal circuits as to whether a state statute’s fraud-on-the-FDA-based exception to a pharmaceutical manufacturer’s statutory immunity can survive a preemption challenge under Buckman Co. v. Plaintiffs’ Legal Committee. But on March 3, 2008, the U.S. Supreme Court, in a per curiam order, affirmed the Second Circuit’s decision in a 4-4 split. With no accompanying opinions, the ruling leaves the previous state of the law unchanged. This update explains the extant split between the Second and Sixth circuits and the implications of the Kent ruling.