Antitrust Law Daily Wrap Up, ANTITRUST—D. Conn.: Aggrenox pay-for-delay suit certified for interlocutory appeal, (Jul 22, 2015)

By Greg Hammond, J.D.

Pharmaceutical companies that allegedly entered into a generic Aggrenox pay-for-delay agreement have obtained certification for interlocutory appeal of a dismissal order leaving federal antitrust claims intact. The federal district court in Bridgeport, Connecticut, determined that the question most clearly warranting review was whether its order of dismissal erred in its description of what constitutes proof of an antitrust violation and causation of antitrust injury, under the Supreme Court’s Actavis decision (In re Aggrenox Antitrust Litigation, July 21, 2015, Underhill, S.).

Aggrenox is a brand-name prescription medication consisting of a particular combination of dipyridamole and aspirin, approved for lowering the risk of stroke or transient ischemic attack. A number of pharmaceutical companies were sued by purchasers of the prescription drug, along with Humana, Inc., for allegedly entering into an unlawful agreement, delaying entry of generic Aggrenox, in violation of federal and state antitrust laws. The court previously entered an order partially granting the pharmaceutical companies’ motion to dismiss, but leaving the federal antitrust claims mostly intact. The defendants subsequently moved to certify the order for interlocutory review.

The defendants raise two issues for appeal: (1) whether the statute of limitations on the antitrust claims begin to run anew from each alleged overcharge, or from the date of the allegedly anticompetitive underlying conduct; and (2) whether the antitrust claims should have been dismissed for failure to plead causation under Section 4 of the Clayton Act, because the plaintiff in Actavis was the FTC and the Supreme Court did not expressly address the causation requirement for private antitrust plaintiffs under Section 4.

Pursuant to the Second Circuit’s decision in Berkey Photo, Inc. v. Eastman Kodak Co., the court’s earlier order concluded that plaintiffs in this case may satisfy the conduct prerequisite to recovery by pointing to anticompetitive actions taken before the limitations period. The defendants, however, argue that there is substantial ground for difference of opinion on this question of the interpretation or applicability of Berkey Photo. The court rejected this argument, finding that the cases and treatise the defendants cite did not differ on the interpretation of Berkey, did not describe a substantial ground for any difference, or did not cast any meaningful doubt on the viability of Berkey Photo.

The court next agreed with the defendants that the plaintiffs must plead and prove that they have been injured by the alleged antitrust violation in order to recover, but it found that the dismissal order did not contradict that requirement. Consequently, the second question did not justify certification of the order for interlocutory appeal.

Although both of the defendants’ questions were rejected, the court nevertheless found that a Second Circuit opinion could be useful in this case and others. It found that the question most clearly warranting review is the substantive standard of Actavis, which was applied in the court’s rejection of several of the defendants’ arguments in their motions to dismiss. The question is whether the court’s earlier order erred in its description of what constitutes proof under Actavis of an antitrust violation and causation of antitrust injury. The court therefore granted the motion for interlocutory appeal, ordering that the Second Circuit may grant review on any portion of the order.

The case number is 3:14-md-2516 (SRU).

Attorneys: Mathew P. Jasinski (Motley Rice LLC), Mitchell M. Breit (Simmons Hanly Conroy, LLP), and Sarah S. Burns (Simmons Browder Gianaris Angelides & Barnerd LLC) for A.F. of L. - A.G.C. Buildings Trade Welfare Plan and Painters District Council No. 30 Health & Welfare Fund. Brian D. Brooks (Smith Segura & Raphael, LLP) and Ephraim R. Gerstein (Garwin Gerstein & Fisher, LLP) for Miami-Luken, Inc. Christina H.C. Sharp (Girard Gibbs, LLP) and Natalie Finkelman Bennett (Shepherd, Finkelman, Miller & Shah, LLP) for International Union of Operating Engineers Local 132 Health and Welfare Fund. Brigid M. Carpenter (Baker, Donelson, Berman, Caldwell & Berkowitz, PC) and Robert D. Carroll (Goodwin Procter, LLP) for Barr Pharmaceuticals Inc., Duramed Pharmaceuticals Inc., and Barr Lab Inc. Jaime M. Crowe (White & Case), John E. Iole (Jones Day), and Kelly G. Laudon (Lindquist & Vennum LLP) for Boehringer Ingelheim International GmbH and Boehringer Ingelheim Pharmaceuticals Inc.

Companies: A.F. of L. - A.G.C. Buildings Trade Welfare Plan; Painters District Council No. 30 Health & Welfare Fund; Miami-Luken, Inc.; International Union of Operating Engineers Local 132 Health and Welfare Fund; Barr Pharmaceuticals Inc.; Duramed Pharmaceuticals Inc.; Barr Lab Inc.; Boehringer Ingelheim International GmbH; Boehringer Ingelheim Pharmaceuticals Inc.

Cases: Antitrust ConnecticutNews