Antitrust Law Daily Wrap Up, ANTITRUST—E.D. Pa.: Motion to disqualify former Connecticut Assistant Attorney General denied in generic drug antitrust MDL, (Mar 11, 2026)

By Justin Marcus Smith, J.D.

The defendants who sought to disqualify ex-Connecticut counsel from representing private plaintiffs in connection with similar antitrust and restraint of trade claims did not show a violation of the Pennsylvania Rules of Professional Conduct.

In the large and long-running generic drug price fixing multi-district litigation, there was no valid stated reason to disqualify a former Connecticut assistant attorney general who joined a private law firm representing private plaintiffs Molina Healthcare and Humana Inc. after having represented Connecticut with respect to the same or similar antitrust claims, held the federal district court in Philadelphia. The former Connecticut attorney did not violate the Pennsylvania rules of professional conduct. The court did not find any prejudice where all parties were sharing nearly all information in question pursuant to pre-trial orders (PTOs) during the course of routine discovery (In Re: Generic Pharmaceuticals Pricing Antitrust Litigation, No. 2:20-cv-06303-CMR (E.D. Pa. Mar. 9, 2026)).

Background. In 2016, the Judicial Panel on Multidistrict Litigation consolidated multiple price-fixing and restraint of trade cases concerning hundreds of generic drugs in the Eastern District of Pennsylvania.

In August 2025, the court denied a motion by 42 states, territories, and the District of Columbia to intervene. The states did not succeed with arguments that a proposed settlement between End-Payer Plaintiffs (EPPs) and defendants Sandoz Inc. and Fougera Pharmaceuticals Inc. implicated their sovereign interests in recovering damages for consumers under parens patriae authority. The court granted final approval of the EPP settlement in January, 2026. Earlier this month, the court granted an Epic Pharma LLC motion to dismiss HCSC, Molina, and CVS complaints.

At issue presently was a change in the professional circumstances of former Connecticut Assistant Attorney General W. Joseph Nielsen. Nielsen moved from public employment, where he had been representing Connecticut and other jurisdictions on similar antitrust claims as those in the instant MDL, to private employment with the firm of Lowey Dannenburg, P.C. (Lowey). At Lowey, Nielsen now represents private plaintiffs Molina Healthcare (Molina) and Humana Inc. (Humana) in the instant MDL.

In September 2025, several defendants moved to disqualify Nielsen, as well as Lowey, by imputation, from representing Molina and Humana. The movants claimed Nielsen’s past representation of Connecticut violated Pennsylvania’s Rules of Professional Responsibility 1.11(a). They argued, among other things, that Nielsen could push Lowey to litigate claims against certain defendants more aggressively than against others based on what he learned in confidential settlement discussions while representing Connecticut.

R&R. The court referred the matter to a Special Master for a recommended resolution. The Special Master issued his Report and Recommendation (R&R) recommending denial of the motion, and, in January 2026, the defendants filed objections to the R&R.

The plaintiffs’ opposition to disqualification focused on two key points: (1) Connecticut consented to Nielson’s change of role; and (2) discovery from state actions in the District of Connecticut were either produced in the MDL or were available through “routine discovery tools” where the states and private plaintiffs cooperated on civil, not criminal litigation strategy, and had access to the same information.

The movants objected to the R&R conclusion that R. 1.11(c) did not call for disqualification on the basis that Nielsen was exposed to confidential information relevant to the MDL during his public service, to their disadvantage. The movants said they were compelled to reveal confidential information to Nielsen as consequence of his role as a public investigator, information he promised not to share with the instant MDL plaintiffs.

Discussion. The court adopted the R&R and denied the motions to disqualify Nielsen and Lowey. In preparing the R&R, the Special Master credited reports submitted by plaintiffs’ experts who opined that Nielsen complied with PTO 70, and later related orders, about permissible sharing of discoverable materials exclusive of trade secrets, business information unrelated to the MDL litigation, or personal or embarrassing information unrelated to the MDL. The court footnoted that PTO 70 resulted from a stipulation between the parties, including the movants and respondents here, that provided them with access to nearly all information that Connecticut and the other state plaintiffs had collected earlier.

The movants did not cite any disputes or identify any source of undisclosed or non-disclosable, non-corporeal information that Nielsen might possess to the movants’ prejudice. The court concluded the movants’ claim that Connecticut did not consent to Nielsen representing the private plaintiffs did not hold because the Connecticut Attorney General acknowledged Nielsen’s change of role in a written letter that stated the private employment would not prejudice Connecticut.

That letter also confirmed ongoing cooperation between Connecticut and other plaintiffs in the MDL pursuant to long-standing confidential government information (CGI) agreements. The court noted the motion to disqualify “did not consider the close, court-ordered cooperation among all state and most private plaintiffs in sharing and revealing discovery.”

The court adopted the R&R recommendation to deny the motion to disqualify Nielsen. The court likewise denied the motion to disqualify Lowey because the stated basis for disqualification was coextensive with the absence of any violation of the Rules of Professional Conduct.

The Case is No. 2:20-cv-06303-CMR.

Judge: Rufe, C.

Attorneys: Deborah Rogozinski (Lowey Dannenberg PC) for Humana Inc. Sheron Korpus (Kasowitz LLP) for Actavis Elizabeth LLC.

Companies: Humana Inc.; Actavis Elizabeth LLC

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