In re Aggrenox Antitrust Litigation, 94 F. Supp. 3d 224

Background

Numerous antitrust actions against interrelated pharmaceutical defendants consolidated in MDL, divided into direct- and indirect-purchaser groups plus Humana’s separate suit.
Motions to dismiss have been filed collectively by most defendants or by Teva Israel (Rule 12(b)(2) and 12(b)(6)) for multiple complaints.
Core issues center on Hatch-Waxman settlements and Actavis, governing reverse-payments and their antitrust exposure.
Factual background includes Aggrenox and Aggrenox-related settlements; Accompanying licenses and co-promotion agreements are scrutinized as potential reverse payments.
Statute-of-limitations and accrual issues are analyzed under Berkey Photo, with focus on pay-for-delay overcharges within four years prior to suit.
State-law claims are limited by Illinois Brick indirect-purchaser rule; some states’ repealers or prospective applicability are considered.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Congress and courts have personal jurisdiction over Teva Israel.	Teva Israel participates in the conspiracy through its U.S. affiliates.	Teva Israel lacks sufficient minimum contacts and general/specific jurisdiction.	Teva Israel lacks specific/substantial jurisdiction; Rule 12(b)(2) granted without prejudice.
Whether direct-purchaser claims are timely under statute of limitations.	Overcharges within four years prior to filing; Berkey Photo governs accrual for purchasers.	Accrual from 2008 settlement or 2009 generic approval; claims outside window barred.	Timeliness upheld for overcharges incurred within four years prior to filing.
Whether Actavis permits antitrust claims based on large, unjustified reverse payments in Hatch-Waxman settlements.	Settlement includes large reverse payments beyond services; antitrust injury present.	Payments may be procompetitive or justified, not automatically unlawful; must show large/unjustified reverse payment.	Large and unjustified reverse payments may violate Actavis; allegations here are plausible and survive dismissal.
Whether the alleged settlements show monopoly power and antitrust injury under Actavis.	Aggrenox market power evidenced by supracompetitive pricing without cross-elastic substitutes.	Market definition and power are fact-intensive and not ripe for dismissal.	Pleadings plausibly allege monopoly power and injury; not dismissed at Rule 12(b)(6).
Whether state-law claims (consumer protection/unjust enrichment) survive Illinois Brick and pleading standards.	State laws provide parallel rights; no need to plead every state in detail; general claims suffice.	Illinois Brick bars indirect-purchaser recovery; state claims require non-conclusory pleading and proper standing.	All state consumer-protection/unjust-enrichment claims dismissed without prejudice for nonconclusory pleading; indirect-purchaser/state claims limited by Illinois Brick.

Key Cases Cited

Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir. 1979) (purchaser accrual for overcharges within four years; continuing effects)
Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard for pleadings)
Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard; grounds of entitlement require more than labels)
Actavis, LLC v. FTC, 570 U.S. 136 (U.S. 2013) (reverse payments can violate antitrust law under rule of reason)
Tamoxifen Citrate Antitrust Litig., 466 F.3d 187 (2d Cir. 2006) (antitrust treatment of pay-for-delay settlements (cited in Actavis discussion))
K-Dur Antitrust Litig., 686 F.3d 197 (8th Cir. 2012) (alternative views on reverse payments in Hatch-Waxman context)
Niaspan Antitrust Litig., 42 F. Supp. 3d 735 (E.D. Pa. 2014) (pay-for-delay and Actavis-like analysis in district court)
Loestrin 24 Fe Antitrust Litig., 45 F. Supp. 3d 180 (D.R.I. 2014) (application of Actavis circuits on reverse payments)
Nexium (Esomeprazole) Antitrust Litig., 968 F. Supp. 2d 367 (D. Mass. 2013) (antitrust claims in Hatch-Waxman settlements)