When pharmaceutical titan Allergan embarked on a campaign to buy out, i.e. to monetize, the University of Georgia's (UGA) future royalty stream from the billion-dollar drug Restasis®, Allergan insisted that talks be held behind a thick veil of secrecy, and that the agreement never be revealed to the public.
Six years after its plan succeeded in buying a royalty stream worth hundreds of millions of dollars for a mere $23 million, the secrecy continues.
Georgia Open Record Laws were designed to make government-to-private sector business agreements transparent, to give the public access to review and critique the actions taken by their agents, and thereby protect the public's interests from graft and incompetency. The 'Sunshine' laws were thwarted in this case; a case ripe with both graft and incompetency. The documents that reveal how Allergan took unjust advantage of UGA have remained wrongfully secreted from public review for more than 6 years.
The revolutionary dry-eye treatment, Restasis®, was invented by Dr. Renee Kaswan, then a faculty researcher at the University of Georgia. At Allergan's insistence, even the existence of monetization negotiations was deceitfully hidden from Kaswan. The contract put Allergan in control of potential litigation against Kaswan, and provided legal assistance and funding for UGARF to defend itself against Kaswan's anticipated objections. The undue secrecy allowed Allergan to swindle both Dr. Kaswan and the University of Georgia Research Foundation out of their shares of profits from the blockbuster product, Restasis®.
Kaswan sued, but after years of court maneuvering, the details of Allergan's so-called "Florida Plan" remain hidden in more than 30 documents that were sealed by the court and many more that were redacted or labeled for "attorney's eyes only" - even Dr. Kaswan has been prohibited from reviewing the most embarrassing evidence against Allergan.
Among the key documents: a Power Point presentation used to convince Allergan company officials to secretively pursue the monetization of Restasis® royalties, company e-mails sent as the buy down schemes were underway, and depositions of key company officials.
Georgia Superior Court Judge David Sweat, who originally ordered the documents sealed, has been frustrated in his attempts to make the papers public. He told lawyers for Allergan and UGARF in April 2007 that their 'trade secret' reasons for requesting the seal were not valid.
"At one point there… you all came in and told me that in the marketplace this had not become general knowledge and that's what informed the court's decision to seal this, but I can't imagine…that reason obtains any longer," Sweat said.
The Georgia "Sunshine Laws" require transparency in government, including the courts, to protect the public against corruption and poor management. As Georgia Attorney General Thurbert E. Baker has said, "Government operates best when it operates openly."
Sadly, it doesn't always work out that way.