Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Ill.: Consumer protection claims proceed in Opana ER pay-for-delay suit, (Aug 12, 2016)

By Greg Hammond, J.D.

Consumer protection claims that various pharmaceutical companies conspired to delay entry of generic versions of Opana ER could proceed, according to the federal district court in Chicago. In denying the pharmaceutical companies’ motion to dismiss various unjust enrichment and state consumer protection claims in the antitrust suit, the court concluded that the Florida Unfair and Deceptive Trade Practices ACT (FUDTPA), Massachusetts Consumer Protection Act (MCPA), Missouri Merchandising Practices Act (MPA), and Pennsylvania Unfair Trade Practices and Consumer Protection Law (PUTPCL) allow indirect purchaser claims based on antitrust violations (In re Opana ER Antitrust Litigation, August 11, 2016, Leinenweber, H.).

Alleged end-payor plaintiffs claimed that Endo Health Solutions Inc., Endo Pharmaceuticals Inc., Penwest Pharmaceuticals Co., and Impax Laboratories, Inc. delayed entry of generic versions of Opana ER to the oxymorphone ER market by entering into an illegal reverse payment agreement to settle ongoing patent infringement litigation between Endo and Impax. The pharmaceutical company defendants moved to dismiss the state unjust enrichment, consumer protection, and deceptive trade practices claims.

Consumer protection, unjust enrichment. The plaintiffs could bring claims under the consumer protection laws of Florida, Massachusetts, Missouri, and Pennsylvania, the court first concluded, finding that the FUDTPA, MCPA, MPA, and PUTPCL allow indirect purchasers to recover damages for antitrust conduct under the statutes of these states. There was consequently no reason to bar the plaintiffs’ unjust enrichment claims in Florida, Massachusetts, Missouri, and Pennsylvania.

The plaintiffs also demonstrated that the pharmaceutical company defendants received a benefit at the plaintiffs’ expense—the extra money they paid for the drug.

The Illinois and Rhode Island unjust enrichment claims, however, were dismissed. The Illinois legislature had adopted a clear policy prohibiting indirect purchaser antitrust claims. Further, although Rhode Island recently enacted an Illinois Brick repealer statute, the statute did not apply retroactively to the conduct that occurred prior to its enactment, according to the court.

The case is No. 1:14-cv-10150.

Attorneys: Andrew C. Curley (Berger & Montague, PC) and Archana Tamoshunas (Garwin Gerstein & Fisher LLP) for Rochester Drug Co-Operative, Inc. Andrew W. Kelly (Odom & Des Roches, LLC) and Bruce E. Gerstein (Garwin, Bronzaft, Gerstein & Fisher) for Value Drug Co. Benedict Yung Hur (Keker & Van Nest LLP) for Impax Laboratories, Inc. Brian Savage (Dechert LLP) for Endo Health Solutions Inc., Endo Pharmaceuticals Inc. and Penwest Pharmaceuticals Co.

Companies: Rochester Drug Co-Operative, Inc.; Value Drug Co.; Impax Laboratories, Inc.; Endo Health Solutions Inc.; Endo Pharmaceuticals Inc.; Penwest Pharmaceuticals Co.

Cases: Antitrust ConsumerProtection StateUnfairTradePractices IllinoisNews