Morgan Lewis

Related Publications

01/10/13 Affinity Bar Associations: Why Should Young Lawyers Join?, The Legal Intelligencer
12/06/12 First Amendment Prohibits Criminal Prosecution of Truthful Off-Label Promotion
Second Circuit holds that the government will be required to prove more than simple off-label promotion for misbranding prosecutions under the FDCA.
06/25/12 The Rise of Class Actions and State Attorney General Claims Stemming from Off-Label Activity: Strengthening Your Defense Strategy, presented at the American Conference Institute's 8th Advanced Summit on Off-Label Communications
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practice accolades

Class Actions

Named a Class Actions and Mass Torts 'Powerhouse' in BTI's Litigation Outlook 2014 report

honors + affiliations

Board Member, Community Legal Services of Philadelphia

Board Member, Philadelphia Legal Assistance

Immediate Past-President, Asian Pacific American Bar Association of Pennsylvania

Member, Commission on Judicial Selection and Retention, Philadelphia Bar Association

Member, Pennsylvania Bar Association

Member, Philadelphia Bar Association

Benefit Committee Co-Chair, Asian American Legal Defense and Education Fund (2014)

Minority Business Leader Award, Philadelphia Bar Journal (2013)

Honoree, Ronald H. Brown Center for Civil Rights and Economic Development (2011)

Listed, "Lawyers on the Fast Track," The Legal Intelligencer and Pennsylvania Law Weekly (2009)

Listed, Nightingale's Healthcare News' Outstanding Young Healthcare Lawyers (2009)

St. Thomas More Scholar

Associate Editor, St. John's Law Review

bar admissions

  • Pennsylvania
  • New York

Court Admissions

  • U.S. Court of Appeals for the Third Circuit
  • U.S. District Court for the Eastern District of Pennsylvania
  • U.S. District Courts for the Eastern and Southern Districts of New York
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Erica Smith-Klocek
Partner


Email: esklocek@morganlewis.com
Philadelphia
1701 Market St.
Philadelphia, PA 19103-2921
United States of America
Phone: +1.215.963.5364
Fax: +1.215.963.5001

Erica Smith-Klocek is a partner in Morgan Lewis's Litigation Practice and a member of the firm's Class Action Working Group. She defends life sciences and pharmaceutical clients in a variety of antitrust and commercial litigation matters, including class and other actions brought in state and federal courts by public and private payors alleging illegal pricing and marketing activities. Ms. Smith-Klocek has also represented corporate clients in government investigations and civil actions brought by state and federal authorities. She has litigated cases at both the trial and appellate levels, as well as in arbitrations and mediations.

A recent focus of her practice has been litigation involving Average Wholesale Price pharmaceutical reimbursement claims, where she is defending a leading pharmaceutical manufacturer and its subsidiaries in a series of cases brought by state attorneys general and private payors. Ms. Smith-Klocek also recently represented a major pharmaceutical company with regard to the 340B drug discount program, a matter that was ultimately resolved by the U.S. Supreme Court in her client's favor.

Ms. Smith-Klocek is currently representing a leading pharmaceutical manufacturer in multiple cases, including class actions, alleging off-label marketing and RICO claims. In one such putative multimillion dollar class action filed in New Jersey state court alleging state consumer fraud and RICO violations, her team won three consecutive summary dismissals—the last by the U.S. Court of Appeals for the Third Circuit—without litigation ever reaching the discovery stage. These pharmaceutical defense wins have significantly contributed to case law influencing ongoing off-label litigation nationwide, effectively undermining the novel legal theories behind off-label drug marketing claims by payors seeking to play the role of consumers under the law.

In the antitrust arena, Ms. Smith-Klocek has represented clients from a variety of industries in cases involving branded pharmaceutical pricing, oriented strand board, and, prior to joining Morgan Lewis, a case involving antitrust allegations against a major software company concerning its operating platform.

For several years, Ms. Smith-Klocek has been a member of the Philadelphia office's Professional Recruiting Committee. She serves on the boards of two legal services organizations and has handled a variety of pro bono matters. In 2011, she was honored by the Ronald H. Brown Center for Civil Rights and Economic Development at the St. John's University School of Law.

Prior to joining Morgan Lewis, Ms. Smith-Klocek clerked for Judge Thomas G. Nelson of the U.S. Court of Appeals for the Ninth Circuit. She also served as court counsel to the Supreme Court of the Republic of Palau and was a litigation associate at a prominent New York law firm.

Ms. Smith-Klocek earned her J.D., magna cum laude, from St. John's University School of Law in 1999, where she was a St. Thomas More Scholar. While in law school, she was an associate editor of the St. John's Law Review and vice president of the Asian American Law Students Association. She earned her B.A. in psychology from Johns Hopkins University in 1996.

Ms. Smith-Klocek is admitted to practice in Pennsylvania and New York and before the U.S. Supreme Court, the U.S. Court of Appeals for the Third Circuit, the U.S. District Court for the Eastern District of Pennsylvania, and the U.S. District Courts for the Eastern and Southern Districts of New York.

Selected Representations

Government Investigations/Litigation

  • Represented a pharmaceutical wholesaler in successful dismissal of qui tam action alleging False Claims Act violations arising out of an alleged scheme to increase published prices for certain prescription drugs.
  • Represented a major pharmaceutical manufacturer in multidistrict class action litigation involving claims by third-party payors that certain published prices were inflated and caused the payors to make excessive payments in reimbursement to healthcare providers.
  • Represented a large international pharmaceutical manufacturer in the successful dismissal of a complaint in Utah state court alleging misrepresentations related to Medicaid pricing.
  • Represented a large international pharmaceutical manufacturer in case brought by the Illinois Attorney General alleging consumer protection and false claims violations related to the pricing and discounting of pharmaceutical products.
  • Represented a large international pharmaceutical manufacturer and multiple subsidiaries in case brought by the Louisiana Attorney General alleging consumer protection and fraud claims relating to the publication by third parties of certain pricing benchmarks used by Medicaid for reimbursement.

Commercial Litigation

  • Obtained dismissal of putative class action brought against a pharmaceutical manufacturer by third-party payors alleging that the manufacturer had marketed certain drugs for off-label purposes.
  • National litigation discovery counsel for a large pharmaceutical manufacturer, responsible for coordinating discovery matters across litigations with other outside counsel and providing advice and support on discovery strategy and execution.

Antitrust

  • Represented a wood-products manufacturer in a multidistrict antitrust class action litigation in the Eastern District of Pennsylvania alleging price-fixing and conspiracy by manufacturers of oriented strand board.
  • Represented a home builder in obtaining summary judgment on Sherman Act illegal group boycott claims brought by virtual realtor, and successfully defended decision on appeal to the Third Circuit.
  • Represented a pharmaceutical company in a multidistrict class action litigation alleging conspiracy with other pharmaceutical manufacturers to not provide discounts to retail pharmacies that were offered to managed care and institutional purchasers.

education

  • Saint John's University School of Law, 1999, J.D., Magna Cum Laude
  • Johns Hopkins University, 1996, B.A.