In re Niaspan Antitrust Litigation
42 F. Supp. 3d 735
E.D. Pa.2014Background
- MDL on pay-for-delay settlements delaying generic Niaspan entry; Kos (brand) and Barr (generic) entered three interrelated agreements on Apr 12, 2005 to delay Barr’s entry and compensate Barr; Licensing Agreement, Co-Promotion, and Manufacturing Agreement structured to keep Barr off market until 2013; FDA approved Barr’s generic on Apr 26, 2005, after settlement; Kos later acquired by Abbott, then AbbVie; Barr later acquired by Teva; no generic entered until Sept 20, 2013; plaintiffs allege antitrust and consumer-protection harms from overcharges and delayed entry; plaintiffs seek class-wide damages under federal and state law and unjust enrichment claims; court granted in part/denied in part motions to dismiss; court denied motion for judicial notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal antitrust claims are timely under continuing-violation or fraudulent-concealment doctrines | Plaintiffs say continuing-violation tolls for ongoing overcharges; fraud tolling applies due to concealment | Defendants contend limitations bar claims and concealment not sufficiently pleaded | Continuing-violation timely; fraudulent-concealment tolling denied |
| Whether the alleged reverse payment exists and supports antitrust liability under Actavis | No-AG provision and related agreements constitute a reverse payment delaying entry | Reverse payment must involve cash; even without cash, agreement terms function as a payment | Plaintiffs plausibly alleged a reverse payment with no legitimate procompetitive justification; denial of motion to dismiss on this ground upheld |
| Whether plaintiffs pled antitrust injury and causation adequately | Antitrust injury shown by overcharges and delay of competition; Barr would have prevailed in litigation | Record suggests Barr would have lost; injury insufficient or improperly pleaded | Pleading sufficient to survive at this stage; antitrust injury adequately stated |
| Whether end-payor claims under various states’ laws lack standing or are duplicative | Plaintiffs reside in/paid in states with claims; Illinois Brick repealers allow recovery | Certain states bar indirect-purchaser/antitrust claims; statutory standing issues apply | Standing and some state-law claims dismissed where barred; others survive consistent with repealers and scope of claims |
Key Cases Cited
- In re K-Dur Antitrust Litig., 338 F.Supp.2d 517 (D.N.J.2004) (continuing-violation overcharges in pay-for-delay suits actionable)
- In re Buspirone Patent Litig., 185 F.Supp.2d 363 (S.D.N.Y.2002) (continuing-violation overcharges accrual)
- In re Ciprofloxacin Hydrochloride Antitrust Litig., 261 F.Supp.2d 188 (E.D.N.Y.2003) (fraudulent concealment pleading standards; public disclosures matter)
- In re Nexium (Esomeprazole) Antitrust Litigation, 968 F.Supp.2d 367 (D. Mass.2013) (non-monetary reverse payments considered under Actavis framework)
- Actavis, LLC v. FTC, 570 U.S. 136 (U.S. 2013) ( Supreme Court defining reverse payments and their antitrust scrutiny)
- In re Relafen Antitrust Litigation, 286 F.Supp.2d 56 (D. Mass.2003) (continuing-violation analysis in antitrust context)