Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Attorneys seek $6.3M for diabetes drug monopolization settlement, (Nov 19, 2014)

By Greg Hammond, J.D.

Following preliminary approval of a $19 million settlement in antitrust litigation over the allegedly unlawful blocking of market entry of a generic Type 2 Diabetes drug, attorneys for direct purchaser plaintiffs are seeking over $6.3 million in fees. The unopposed motion additionally seeks nearly $150,000 in costs and expenses, as well as a $50,000 incentive award for each class representative (In re Prandin Direct Purchaser Antitrust Litigation, Case No. 2:10-cv-12141-AC-DAS).

Novo Nordisk A/S and Novo Nordisk, Inc. are the patent holders for Prandin®, a prescription drug used to treat Type 2 Diabetes. Direct purchasers of the prescription drug filed suit against Novo, alleging that the companies unlawfully blocked FDA approval and market entry of Prandin’s generic bioequivalent, repaglinide. Specifically, it was alleged that Novo switched the “use code” narrative for its Prandin patent by expanding the description of the claim. Further, instead of immediately delisting the new use code narrative, pursuant to a mandatory injunction, Novo appealed the injunction all the way to the Supreme Court. The parties settled the monopolization suit for $19 million prior to a motion to dismiss hearing.

Through their unopposed motion, class counsel assert: (1) the attorney fees derive from the benefits created by the antitrust litigation; (2) the “percentage method” of determining attorney fees is appropriate, and the one-third fee is fair and reasonable; (3) the costs and expenses incurred by class counsel were necessarily incurred; and (4) the $50,000 incentive awards for the class representatives are appropriate and reasonable.

The plaintiffs’ counsel also filed a declaration in support of their unopposed motion, noting that the litigation was intensive and complex; the settlement negotiations were at arm’s length; class counsel devoted many hours to prosecute the case, despite the risk of non-payment; counsel’s experience and specialized expertise provided substantial value to the plaintiffs and enabled a positive result; counsel kept contemporaneous time and expense records; the class representatives benefitted the class through their direct participation and efforts; and class counsel will continue to perform any additional work to finalize and distribute the settlement.

Attorneys: Patrick E. Cafferty (Cafferty Clobes Meriwether & Sprengel LLP) for plaintiffs.

Companies: American Sales Co., LLC; Rochester Drug Co-Operative, Inc.

News: Antitrust