Summary Judgment for Defendants Denied in Loestrin Antitrust Case

In a recent Opinion and Order, Chief Judge William E. Smith of the District of Rhode Island denied summary judgment for Defendants Warner Chilcott and Watson (now part of Allergan) in an antitrust case alleging that Defendants conspired to delay market entry of less expensive generic Loestrin 24.  

Plaintiffs’ allegations include patent fraud, a pay-for-delay deal, and a product hop from Loestrin 24 to Minastrin 24.  As the Court summarized it, “Plaintiffs’ case . . . is simply that generics should have been available for them to purchase earlier.  And indeed they would have been but for Defendants’ allegedly anticompetitive conduct, including:  protecting Loestrin with a patent Warner Chilcott knew was invalid; filing sham patent infringement lawsuits against prospective generic entrants; settling those suits to split monopoly profits; and formulating a new drug (Minastrin) only to limit generic substitution.”  Op. at 2-3 (citation omitted). 

The case started with three Plaintiff groups:  a class of direct purchasers (i.e. pharmaceutical wholesalers), a class of end payors (i.e. insurers), and certain retailers such as CVS that opted out of the direct purchaser class.  The direct purchasers, represented by Faruqi & Faruqi among others, recently executed a memorandum of understanding to settle their claims with Defendants.