Antitrust Law Daily Wrap Up, ANTITRUST—JPML: Suits Challenging Alleged Agreements to Block Generic Nexium Centralized in Federal District Court in Massachusetts, (Dec 10, 2012)

By Jeffrey May, J.D.

The Judicial Panel on Multidistrict Litigation (JPML) has consolidated in the federal district court in Boston for pretrial proceedings six antitrust actions against drug companies for excluding generic competition for Nexium. Nexium (esomeprazole magnesium) is a leading prescription drug used to treat the symptoms of gastroesophageal reflux disease (GERD). The actions are purported nationwide class actions alleging that the drug companies violated federal and state antitrust laws by entering into reverse payment agreements in which AstraZeneca AB—the seller of Nexium—allegedly agreed to pay generic manufacturers substantial sums in exchange for delaying entry of their less expensive generic versions of the drug into the market (In re: Nexium (Esomeprazole) Antitrust Litigation, December 6, 2012, Heyburn, J.).

There was disagreement among the plaintiffs in the various suits over the appropriate transferee district. Actions were brought in federal district courts in New Jersey and Pennsylvania, as well as Massachusetts. Since the recent decision of the U.S. Court of Appeals in Philadelphia in In Re: K-Dur Antitrust Litigation (677 F.3d 1298, 2012-2 Trade Cases ¶77,971), which held that reverse payment agreements are presumptively anticompetitive, a federal district court within the Third Circuit is a friendly setting for plaintiffs challenging patent settlement agreements between drug companies on antitrust grounds.

The JPML decided, however, that the “relatively underutilized” federal district court in Boston was the appropriate transferee court and that Judge William G. Young was the appropriate judge. The district was both convenient and accessible for the parties and witnesses. Moreover, Judge Young was a jurist with multidistrict litigation experience, who was not currently presiding over such a litigation. Judge Young also demonstrated both the ability and willingness to handle the litigation, according to the JPML.

The case is MDL No. 2409

Cases: Antitrust