Antitrust Law Daily Wrap Up, ANTITRUST—2nd Cir.: Expedited appeal granted to Actavis in New York’s Namenda suit, (Jan 7, 2015)

By Linda O’Brien, J.D., LL.M.

The U.S. Court of Appeals in New York City has agreed to expedite the appeal by pharmaceutical manufacturer Actavis and its New-York based subsidiary Forest Laboratories of a preliminary injunction, preventing the drug companies from forcing Alzheimer’s patients to switch medications to a newer version of the drug Namenda (The People of the State of New York v. Actavis plc, January 6, 2015, per curiam).

Forest is the exclusive seller of the patented drug Namenda, a therapy approved by the Food and Drug Administration for the treatment of Alzheimer’s disease. In February 2014, the New York Attorney General’s office began an investigation into Forest’s plans to withdraw Namenda IR from the market , which was protected by a patent due to expire in July 2015, and to switch patients to Namenda XR, a similar drug with a longer patent term.

In September 2014, the State filed an antitrust complaint, seeking to prevent Actavis and Forest from discontinuing sales of Namenda IR and forcing patients to switch to Namenda XR. On December 11, the court granted the New York Attorney General’s motion for preliminary injunction, blocking Actavis from discontinuing sales of Namenda IR while the case was pending.

In a brief order, the appellate court granted Actavis’ motions to expedite the appeal and to seal its unredacted submissions. However, Actavis’ motion to stay the preliminary injunction was denied for failure to meet the standard set forth in the case of In re World Trade Center Disaster Site Litigation, 503 F.3d 167 (2007).

The case is No. 14-4624.

Attorneys: James Andrew Kent, New York State Office of the Attorney General, for the State of New York. Lisa Schiavo Blatt (Arnold & Porter LLP), Peter James Carney (White & Case LLP), and George Thomas Conway, III (Wachtell, Lipton, Rosen & Katz) for Actavis plc and Forest Laboratories, LLC.

Companies: Actavis plc; Forest Laboratories

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