Antitrust Law Daily Wrap Up, ANTITRUST NEWS: $34M in attorney fees, expenses sought in Prograf class action, (Apr 13, 2015)

By Greg Hammond, J.D.

Class counsel for direct purchaser plaintiffs has moved for $32.667 million in attorney fees, over $1.4 million in litigation expenses, and incentive awards for class representatives—ranging between $50,000 and $100,000—for their respective contributions to the success of multidistrict litigation against Japanese pharmaceutical manufacturer, Astellas Pharma US, Inc. The class alleged in the federal district court in Boston that Astellas foreclosed generic competition to its branded prescription immunosuppressant Prograf (In re Prograf Antitrust Litigation, Case No. 2242, April 9, 2015).

Prograf is a branded prescription immunosuppressant used in organ transplant patients, manufactured by Astellas. Direct purchaser plaintiffs—including pharmaceutical wholesalers Burlington Drug Co. Inc., King Drug Co. of Florence, Inc., Louisiana Wholesale Drug Co., Stephen L. LaFrance Holdings, Inc., and Uniondale Chemists, Inc.—sued Astellas, alleging that they overpaid for the drug because Astellas foreclosed generic competition to its branded drug by delaying generic drug market entry. Specifically, the purchasers alleged that, after another pharmaceutical company sought Food and Drug Administration approval to market and sell generic versions of Prograf, Astellas filed an objectively baseless citizen petition with the agency for the purpose of delaying such approval. The parties reached a cash settlement of $98 million, plus interest. Class counsel has now moved for an award of attorney fees, reimbursement of expenses, and incentive awards to class representatives.

In support of its motion for attorney fees, class counsel argued that the size of the $98 million settlement fund is substantial and will provide a significant guaranteed recovery to the class. In addition, the memorandum asserted that no objections have been made, the litigation was vigorously and effectively prosecuted at all stages; class counsel faced significant risks in pursuing the litigation; the fee request is consistent with other pharmaceutical antitrust action fee awards; and public policy is served through the compensation of counsel who prosecute private claims on a contingent basis.

Class Counsel also requested approval of incentive awards of $100,000 for Louisiana Wholesale Drug Co., Inc. and King Drug Co. of Florence, Inc.; $75,000 each to Stephen L. LaFrance Pharmacy, Inc. and Burlington Drug Co., Inc.; and $50,000 to Uniondale Chemists, Inc.

In a separate memorandum, also filed April 9, class counsel is seeking final approval of settlement.

Attorneys: Bruce E. Gerstein (Garwin Gerstein & Fisher LLP) and Thomas M. Sobol (Hagens Berman Sobol Shapiro LLP) for Direct Purchaser Class.

Companies: Astellas Pharma US, Inc.; Burlington Drug Co. Inc.; King Drug Co. of Florence, Inc.; Louisiana Wholesale Drug Co.; Stephen L. LaFrance Holdings, Inc.; Uniondale Chemists, Inc.

News: Antitrust MassachusettsNews