Antitrust Law Daily Wrap Up, ANTITRUST—D. Conn.: Actavis granted dismissal of price fixing claims as to three dermatological products, (Jul 10, 2026)

By Jeffrey H. Brochin, J.D.

Actavis’s motion for summary judgement granted as to the states’ claims regarding conspiracies regarding Ammonium Lactate cream and lotion, Desonide lotion in 2011, and Fluocinonide solution, but denied as to remaining drug product claims.

The federal district court in Hartford, Connecticut has granted in part and denied in part a motion for summary judgement filed by the various Actavis defendants in long-running litigation brought by almost every U.S. state against 36 drug manufacturers. The States alleged that the manufacturers engaged in a wide-ranging, overarching series of conspiracies to fix prices, allocate markets, and rig bids in the sale of dozens of generic dermatological drug products. The court, after carefully considering the direct evidence proffered by the states’ witnesses, determined that a reasonable jury could find that Actavis more likely than not joined an anticompetitive conspiracy to maintain prices and avoid competing with Sandoz upon Sandoz’s entry into certain markets as to certain of the products, but that the evidence was insufficient for a reasonable jury to infer a conspiracy was more likely than not as to three specific products (State Of Connecticut v. Sandoz, Inc., No. 3:20-cv-00802-MPS (D. Conn. Jul. 8, 2026)).

Background. The instant case was one of three in which Attorneys General sued scores of manufacturers in the generic drug industry for alleged antitrust violations and unfair trade practices. The Complaint alleged collusion in the pricing, market allocation, and bidding for some eighty generic drugs, chiefly for dermatological applications. Actavis Holdco U.S., Inc., Actavis Pharma, Inc., and Actavis Elizabeth, LLC (collectively, “Actavis”) moved for partial summary judgment on the states’ claims that it unlawfully conspired with competitors to fix prices, allocate the markets, or rig bids for nine drug products.

In ruling on Actavis’ motion, the court considered evidence specific to Actavis’s participation in alleged conspiracies related to the nine drugs: Ammonium lactate cream and lotion, Ciclopirox shampoo, Desonide lotion, Fluocinonide solution, Nystatin ointment, Metronidazole cream and lotion, and Terconazole cream.

Key states’ witnesses. Prominent among the states’ cooperating witnesses who testified that Actavis was part of unlawful anticompetitive agreements related to Ciclopirox shampoo, Desonide lotion, and Metronidazole cream and lotion, were Christopher Bihari and Anthony Thomassey, who were both National Account Executives with sales responsibilities at Fougera until its 2012 acquisition by Sandoz.

Bihari testified that he helped to implement agreements between Sandoz and both of its competitors, Actavis and Perrigo, to fix prices and allocate customers for Ciclopirox shampoo as Sandoz was preparing to enter that market. He testified that he took part in back-to-back calls with Perrigo’s Tony Polman and Actavis’s Aprahamian on November 28, 2012 to obtain his competitors’ pricing information, and that he passed this information on to Michael Vezza, who managed Sandoz’s pricing team. When asked to describe the agreement between Sandoz and Actavis concerning Ciclopirox shampoo, Bihari testified ‘that Actavis would relinquish certain customers. Pricing was provided. And it was to ensure that pricing was kept high in the market, but still lower than Actavis’s dead net [price] to ensure that Sandoz’s offer was successful.’

Anthony Thomassey testified that his employer Fougera agreed with competitors Actavis and G&W to fix prices on Metronidazole cream and lotion in 2011, and when asked to describe the agreement, Thomassey testified that it was ‘to allocate market share and keep the price as high as possible.’

Ruling on ‘2011 claims’. The court noted that the states alleged that Actavis previously conspired with Sandoz’s predecessor Fougera when the firms increased their WAC prices for Desonide lotion in parallel within days of each other in July 2011. However, the only evidence the states presented to suggest that those increases were the product of an agreement was that Sandoz followed Actavis’s price on the same day it also increased its price for Metronidazole cream and lotion, drugs for which Anthony Thomassey testified as to an agreement. Thomassey did not however, testify as to an agreement on Desonide lotion, and in the absence of other evidence, the court held that a decision to follow a competitor’s price increase was equally consistent with independent conduct. Accordingly, the court granted Actavis’s motion for summary judgement as to the states’ claim that Actavis conspired with Fougera on Desonide lotion in 2011.

Ammonium Lactate Cream and Lotion ruling. The court next considered the states’ evidence as to al alleged conspiracy regarding Actavis’ decision to increase its Ammonium lactate cream and lotion prices on March 26, 2013, and found that it fell short of an agreement to fix prices. Actavis’ decision followed a number of calls between competitors earlier in the month, and before another spate of interfirm communications in April 2013 that preceded competitor Taro’s increases to its contract and WAC prices. The states argued that those prices increases represented ‘parallel conduct’, and that Actavis ‘led the price increases among the competitors.’ However, the court found that the size of the competitors’ 2013 price increases for Ammonium lactate cream and lotion were too dissimilar to infer that they stemmed from a prior agreement, and the court therefore granted Actavis’ motion as to those products.

Fluocinonide solution claims. The evidence presented by the states suggested that manufacturer Taro—but not Sandoz—acted in accordance with a plan to relinquish customers to Actavis. Actavis argued that ‘if Taro and Sandoz had agreed to allocate customers to Actavis, there would have been no reason for Actavis to submit a bid for Taro’s [customer’s] business that was 30% lower than Taro’s price.’ However, the court observed that although Actavis’s offer was slightly below the percentage typically needed to incentivize a switch, that was not a material difference--particularly for a supplier that was seeking its first customer--where the supplier might be more willing to offer an even lower price in order to gain a foothold in the market.

Furthermore, the evidence that the states offered in support of its contention that Sandoz similarly agreed to relinquish certain customers to Actavis did not tend to exclude independent conduct for a variety of reasons. Ultimately, the court found that while a reasonable jury could infer that Actavis more likely than not agreed with Taro to allocate the market to avoid eroding prices upon Actavis’s entry into the Fluocinonide solution market in 2013, the same jury could not infer that Actavis more likely than not reached a market-allocation agreement with Sandoz. Therefore, Actavis’s motion for summary judgment on the states’ Fluocinonide solution claims was denied as to an agreement with Taro but granted as to an agreement with Sandoz.

As to the remaining six drug products at issue, Actavis’ motion for summary judgement was denied.

The Case is No. 3:20-cv-00802-MPS.

Judge: Shea, M.

Attorneys: Cara Moody, Office ­­­­­of the Attorney General, for State of Connecticut. Jeffrey Mueller (Day Pitney LLP) for Sandoz, Inc.

Companies: Sandoz, Inc.

Cases: Antitrust ConnecticutNews