Class action lawsuit: Gilead sent envelopes marked ‘HIV Prevention Team’
An Alabama man was mortified when an envelope for him turned up in his workplace mailroom with the return address HIV Prevention Team in bold red lettering. An Indiana man, so protective of his confidentiality that he fills his HIV-related prescriptions at a different pharmacy chain from where he gets his other medications, was shocked to receive the same mailing. And a Missouri man, who lives in a 22-unit apartment building, found the mailer addressed to him in plain view on top of the residents’ mailboxes.
These are just three instances in which the mailing from the California-based Big Pharma firm Gilead Sciences stunned recipients. Gilead develops and sells prescription drugs, including those for treatment and prevention of HIV. Its drugs include Truvada and Descovy, the only ones available for the prescribed medication regimen known as pre-exposure prophylaxis (“PrEP”) for people who want to avoid contracting HIV.
The company maintains a patient-assistance program to provide free or discounted PrEP to enrollees. The enrollment form states that “[p]atient confidentiality is of primary importance to us. All patient information will remain confidential.” Participants may even opt out of any Gilead marketing efforts.
But despite its promise of privacy, Gilead sent the mailer to enrolled participants with the return address printed in a bold red font: “HIV Prevention Team.” The mailers were sent to home or workplace addresses that enrollees provided.
On May 21, 2020, the AIDS Law Project of Pennsylvania, joined by law firms Berger Montague and Langer Grogan & Diver, sued Gilead for violating the privacy of people enrolled in its PrEP program. The case originally was filed in federal court in California, then was voluntarily dismissed and refiled in California Superior Court on Oct. 20, 2020.
In signing up for Gilead’s PrEP program, Gilead customers were promised confidentiality and did not expect or agree to receive mail from Gilead that would link them to HIV. Stigma surrounding HIV has led to discrimination in employment, housing, education, and health care – and even violence. Fear of that stigma is widely recognized as contributing to the AIDS epidemic by discouraging people from getting tested.
To ensure that people feel safe to come forward to be tested and treated for HIV, many states have adopted laws that protect the confidentiality of HIV-related information and provide for statutory damages. The lawsuit demands that Gilead reform its mailing procedures and pay monetary damages to the plaintiffs.
Gilead has aggressively fought back against the lawsuit, claiming that participants suffered no harm because they did not specify who at their home or workplace saw the envelope. But a California Superior Court ruling on Jan. 4, 2021, allows the case to move forward. The judge wrote:
“Plaintiffs’ confidential medical information was allegedly in plain view on envelopes sent through regular mail. And an unauthorized person like a postal service worker necessarily looked at the information on those envelopes in order to deliver Gilead’s letters to Plaintiffs. From these facts, it is more than reasonable to infer that an unauthorized person actually viewed Plaintiffs’ medical information on the envelopes.”
The judge also recognized that “information that identifies a patient and connects that patient to a “‘medical history, mental or physical condition, or treatment’” is protected by [California law] … Here, the envelope allegedly identified Plaintiffs through their name and address and connected them to a particular medical condition – i.e., HIV status – or medical treatment – i.e., Gilead’s drugs for treating or preventing HIV.”
The case differs from other data breaches of credit card numbers or online shopping accounts because it involves the public disclosure of stigmatizing personal information. Given Gilead’s successes in providing medications to people living with or at risk of acquiring HIV, participants expected and deserved better.
Founded in 1988, the AIDS Law Project of Pennsylvania is the nation’s only independent nonprofit public-interest law firm providing free legal services to people living with HIV and those affected by the epidemic.
Berger Montague, a national plaintiffs’ law firm, is headquartered in Philadelphia and has offices in San Diego, Minneapolis, and Washington, D.C. The firm has played lead roles in major cases for 50 years, resulting in recoveries of more than $36 billion for its clients and the class members they have represented.
Langer Grogan & Diver is a Philadelphia-based complex commercial litigation boutique law firm built on a focus and dedication to the public good.
California Superior Court for the County of San Mateo
January 25, 2021: Defendant’s General Denial and Affirmative Defenses
October 20, 2020: Gilead Sciences Motion to Strike Class Allegations, Gilead Sciences Demurrer
Northern District of California
August 31, 2020: Notice of Voluntarily Dismissal Without Prejudice
August 17, 2020: Gilead Motion to Dismiss
May 22, 2020
- Philadelphia Inquirer – HIV drug patients’ privacy violated by Gilead, lawsuit claims