Antitrust Law Daily Wrap Up, ANTITRUST—D. Mass.: Court resolves summary judgment issues in Nexium antitrust litigation, (Feb 13, 2014)
Law Firms Mentioned:Budd Larner PC | Cohen Milstein Sellers & Toll PLLC | Covington & Burling LLP | Grant & Eisenhofer PA | Hopgood, Calimafde, Kalil, Blaustein & Judlowe | Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC | Vanek Vickers & Masini PC | Venable LLP | Wexler Wallace LLP | Williams & Connolly LLP
Organizations Mentioned:AstraZeneca LP | Cohen Milstein Sellers & Toll, PLLC | Covington & Burling, LLP | Dr. Reddy's Laboratories | Dr. Reddys Laboratories Ltd. | Dr. Reddy’s Laboratories Ltd. | Grant & Eisenhofer, PA | Meijer Distribution, Inc. | Mintz Levin Cohn Ferris Glovsky & Popeo, PC | Ranbaxy Laboratories Ltd. | Ranbaxy Laboratories, Ltd. | Teva | Teva Pharmaceutical Industries, Ltd. | Venable, LLP | Wexler Wallace, LLP | Williams & Connolly, LLP
By Jody Coultas, J.D.
The federal district court in Boston ruled on a number of motions for summary judgment filed by drug manufacturers in a case brought by direct purchasers of AstraZeneca LP’s drug Nexium, alleging that AstraZeneca and generic drug manufacturers entered into reverse payment agreements to block the entry of generic version of the drug (In re Nexium (Esomeprazole) Antitrust Litigation, February 12, 2014, Young, W.).
Direct purchasers of Nexium alleged that AstraZeneca and three generic drug manufacturers—Ranbaxy Pharmaceuticals, Inc., Teva Pharmaceutical Industries, Ltd., and Dr. Reddy’s Laboratories Ltd.—entered into the reverse payment agreements to block generic competition for Nexium. The class of direct purchasers was comprised of wholesalers and retailers that purchased Nexium directly from AstraZeneca and that will purchase generic Nexium directly from one or more of other generic manufacturers.
AstraZeneca, Ranbaxy, and Teva filed a number of motions for summary judgment that the court needed to address before the case could move forward.
AstraZeneca’s motion for summary judgment against the direct purchaser plaintiffs for lack of actual injury and to exclude the direct purchaser plaintiffs’ experts’ damages opinions was denied by the court, as was the motion for summary judgment on the basis of statute of limitations.
The court denied as premature AstraZeneca’s motion for summary judgment barring assigned claims. The 30-day direct purchaser class opt-out period was pending and the retailers had an opportunity to file an exclusion from the certified class. The retailers presented sufficient evidence to minimize concerns of duplicative recovery.
The motion for partial summary judgment as to overarching conspiracy and the portion of the motion for summary judgment regarding conspiracy claims were denied by the court based on circumstantial evidence for the jury reasonably to infer a conspiracy in violation of Sections 1 and 2 of the Sherman Act and analogous state laws.
Teva’s motion for summary judgment based on absence of reverse payment to Teva was granted based on a lack of existence of a “large, unjustified reverse payment,” according to the court. Teva may, however, still be liable under the overarching conspiracy theory.
Teva’s motion for summary judgment based on lack of causation was also denied by the court. The evidence supported an inference that Teva deliberately slowed its Nexium ANDA process as a result of the Teva-AstraZeneca settlement agreement.
The court granted Dr. Reddy’s motion for summary judgment except where based on participation in the conspiracy.
AstraZeneca was granted dismissal of all claims arising from its settlements with Teva because the plaintiffs failed to show that the settlement agreements constituted large, unjustified reverse payments, according to the court.
AstraZeneca and Ranbaxy were denied dismissal of claims arising from AstraZeneca’s settlement with Ranbaxy on the basis that the Plaintiffs are able to show that the agreement constituted a large, unjustified reverse payment.
The court granted Ranbaxy’s motion for summary judgment due to lack of causation because there was no adequate evidence that Ranbaxy would have launched “at risk.”
AstraZeneca’s motion for summary judgment on the basis of causation was granted by the court with respect to its agreements with Ranbaxy and Dr. Reddy’s, and denied with respect to its agreement with Teva.
The case was ordered administratively closed while the court prepared a full written opinion. It may be reopened upon the motion of any party or if: (1) the court asks for further briefing upon a motion for reconsideration; (2) any two or more of the parties seek court approval for a settlement; (3) a generic version of Nexium is launched; or (4) the court issues its written opinion.
The case is No. 12-md-02409-WGY.
Attorneys: Bradley J. Demuth (Grant & Eisenhofer PA) and David P. Germaine (Vanek Vickers & Masini PC) for Meijer, Inc., Meijer Distribution, Inc. and Fraternal Order of Police Miami Lodge 20 Insurance Trust Fund. Christopher Lometti (Cohen Milstein Sellers & Toll PLLC) for New York Hotel Trades Council and Hotel Assoc. of New York City, Inc. Health Benefits Fund. Bethany R. Turke (Wexler Wallace LLP) for United Food Workers and Commercial Workers Unions and Employers Midwest Health Benefits Fund. Ajay Kayal (Budd Larner PC) and Alan H. Pollack (Hopgood, Calimafde, Kalil, Blaustein & Judlowe) for Dr. Reddy’s Laboratories Ltd. and Dr. Reddy’s Laboratories, Inc. Ashley E. Bass (Covington & Burling LLP) and Benjamin M. Greenblum (Williams & Connolly LLP) for AstraZeneca LP. Lisa Jose Fales (Venable LLP) for Ranbaxy Laboratories, Ltd. and Ranbaxy Inc. Adam L. Sisitsky (Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC) for Teva USA, Inc.
Companies: Dr. Reddy’s Laboratories Ltd.; AstraZeneca LP; Ranbaxy Laboratories, Ltd.; Meijer Distribution, Inc.; Teva Pharmaceutical Industries, Ltd.
Cases: Antitrust MassachusettsNews