Pfizer Wins Second Circuit Affirmance of Dismissal in “Reverse Racism” Challenge

Paul, Weiss achieved a major victory on behalf of Pfizer Inc. when the Second Circuit affirmed the dismissal of a lawsuit challenging Pfizer’s Breakthrough Fellowship Program, which is designed to address gaps in recruiting, retaining and promoting diverse talent. The panel found that the plaintiff, healthcare professionals association Do No Harm, lacked standing to bring civil rights and racial discrimination claims because it failed to identify a single injured member by name.

Pfizer’s prestigious Breakthrough Fellowship Program was launched in 2021 to advance the careers of students and young professionals with a demonstrated commitment and ability to advance diversity, equity and inclusion, growing the pipeline for Black/African American, Latino/Hispanic and Native Americans at Pfizer. The program represents a nine-year commitment to each fellow and is aimed at diversifying the pharmaceutical giant’s leadership.

Do No Harm, a Virginia-based organization of medical and healthcare professionals created in early 2022, brought its suit and emergency motion for a preliminary injunction in September 2022, seeking to block Pfizer from inducting its third class of Breakthrough Fellows and alleging that the program “categorically” discriminates against white and Asian American applicants. Do No Harm brought civil rights and racial discrimination claims under Section 1981 of the Civil Rights Act, Title VI and other federal, state and city laws in the Southern District of New York.

In December 2022, the lower court denied Do No Harm’s preliminary injunction request and dismissed its lawsuit. The court agreed with our arguments that Do No Harm lacked standing to bring the suit because none of its members were identified by name, and vague statements by two of its members were given anonymously. The judge also sided with our assertion that the organization failed to show that the members suffered any actual injury because they did not provide specific information showing that they met the competitive academic and leadership qualifications required by the fellowship program.

Do No Harm appealed to the Second Circuit in January 2023, arguing that after the district court concluded that it lacked standing for purposes of its preliminary injunction motion, the court should not have dismissed the claims altogether unless Do No Harm failed to establish standing under the less onerous standard applicable at the pleading stage. In particular, the organization argued that at the pleading stage, it is not required to name its members to establish Article III standing, and that its use of pseudonyms was sufficient to meet those standing requirements.

The Second Circuit panel disagreed with this assessment, siding with our arguments and affirming the lower court’s denial of the preliminary injunction and dismissal of the claims.

“Disclosure to the court of harmed members’ real names is relevant to standing because it shows that identified members are genuinely ready and able to apply, and are not merely enabling the organization to lodge a hypothetical legal challenge,” the panel wrote in its opinion. “A member’s name does not merely check a box; it is a demonstration of the sincerity of the member’s interest in applying for a fellowship. These are quintessential Article III standing concerns.”

Paul, Weiss briefed the response to Do No Harm’s appeal and co-counsel delivered oral argument in October.

The Paul, Weiss team includes litigation partners Jeannie Rhee, Liza Velazquez, Martha Goodman and Loretta Lynch.