Antitrust Law Daily Wrap Up, ANTITRUST—E.D. Tenn.: Assignees must retrieve discovery from assignors in suit over delayed generic competition for muscle relaxant, (Jan 15, 2014)

By Jeffrey May, J.D.

Direct purchaser plaintiffs in an antitrust action against pharmaceutical companies for delaying generic competition for the prescription muscle relaxant sold under the brand name Skelaxin, as assignees of claims, have been ordered by the federal district court in Chattanooga, Tennessee, to retrieve discovery from their assignors. The court rejected objections from these plaintiffs, including drug store chains Walgreens and Rite-Aid, to a magistrate judge’s order granting defendants King Pharmaceuticals LLC’s and Mutual Pharmaceutical Company, Inc.’s motion to compel (In re: Skelaxin (Metaxalone) Antitrust Litigation, January 10, 2014, Collier, C.).

The drug store chains unsuccessfully argued that courts should only order assignees, such as themselves, to obtain discovery from assignors when the defendant is unable to obtain service itself. The court reasoned that it would be unfair for plaintiffs to step into the shoes of the assignors for the purposes of bringing their claims and not also assume the attendant discovery obligations. The court refused to allow assignment to serve as an end-run around discovery.

The court also rejected the chains’ assertions that the requested discovery would distract from the upcoming damages trial. The plaintiffs had “the resources and wherewithal to prosecute their claims and respond to discovery requests as any other litigant would be required to do,” in the court’s view.

Background. The suit alleges a series of anticompetitive acts that obstructed generic competition for Skelaxin, which is manufactured by King. A number of purchasers of the muscle relaxant, including the drug store chains, challenged the filing of patent infringement suits and Food and Drug Administration “citizen petitions” to delay generic competition, as well as the purported agreement between King and Mutual, under which King allegedly paid Mutual $200 million not to enter the market with any generic metaxalone product. In May 2013, the court denied the defendants’ motion to dismiss (2013-1 Trade Cases ¶78,389).

The case is No. 1:12-md-2343.

Attorneys: Andrew K. Solow (Kaye Scholer LLP), Aubrey B Harwell, Jr. (Neal & Harwell, PLC), and C. Celeste Creswell (Miller & Martin, PLLC) for King Pharmaceuticals, Inc., Mutual Pharmaceutical Company, Inc. Anna T. Neill (Kenny Nachwalter P.A.) for Walgreen Co. Barry L. Refsin (Hangley, Aronchick, Segal, Pudlin & Schiller) for Rite Aid Corp

Companies: King Pharmaceuticals LLC; Mutual Pharmaceutical Company, Inc.; Walgreen Co.; Rite Aid Corp.

Cases: Antitrust TennesseeNews