Judge Allison D. Burroughs of the United States District Court for the District of Massachusetts recently certified a class of direct purchasers of the ADHD drug Intuniv or its generic equivalent in an antitrust “pay-for-delay” case. In re Intuniv Antitrust Litig., 16-cv-12653-ADB (D. Mass. Sept. 24, 2019), ECF No. 343. Pay-for-delay arises during the course of patent litigation settlement, when a brand pharmaceutical company pays off a generic pharmaceutical company to give up the patent fight. This removes the risk of the patent(s) covering a brand drug being invalidated, and can thereby postpone launches of less expensive generic drugs. These are called “reverse payments” because they flow from the brand pharmaceutical company (the plaintiff) to the generic pharmaceutical company (the defendant). Typically, a defendant pays a plaintiff to settle litigation.
The direct purchasers allege that the brand manufacturer for Intuniv, Shire (now part of Takeda), settled with generic manufacturer Actavis by guaranteeing that when Actavis launched its generic version of Intuniv it would be the only generic on the market for six months. Such arrangements limit competition and can constitute reverse payments under the antitrust laws because they allow the generic manufacturer to make more money during the exclusive six month period than it otherwise would have in a competitive market. Absent this payment, the direct purchasers allege that less expensive generic versions of Intuniv would have come to market earlier.
Judge Burroughs found that the class of direct purchasers, comprised of at least forty-eight entities, was sufficiently large that a class action would be the most practicable way to try the case. Judge Burroughs also found that the class members’ claims all arise from the same allegedly anticompetitive conduct of the defendants, further demonstrating why a class action is warranted.
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About David Calvello
David Calvello is an Associate in Faruqi & Faruqi, LLP's New York office. He mainly practices in the area of antitrust litigation with a focus on competition in the pharmaceutical industry. He has worked on multiple cases that resulted in significant settlements, including In re Lidoderm Antitrust Litigation, 14-md-02521 (N.D. Cal.) ($166M settlement) and In re Solodyn Antitrust Litigation, 14-md-02503 (D. Mass.) ($76M settlement).