Plaintiffs Defeat Summary Judgment in Suboxone Antitrust Case, Hop Closer to Trial

On August 22, 2022, Judge Goldberg denied Reckitt’s (currently known as Indivior, Inc.) motion for summary judgment against a certified Class of direct purchasers, a group of end payors, and a group of States’ Attorneys General in In Re Suboxone (Buprenorphine Hydrochloride and Naloxone) Antitrust Litigation.  Faruqi & Faruqi are co-lead counsel for the Direct Purchaser Class.  In Suboxone, Plaintiffs are challenging a scheme by Reckitt to switching the market from Suboxone tablets to a therapeutically equivalent Suboxone film.  Plaintiffs contend that the switch scheme, typically referred to as a “product hop,” was anticompetitive and solely designed to maintain Reckitt’s power over the market for the drug Suboxone, which treats opioid addiction.

In his 87 page opinion, Judge Goldberg noted that Reckitt “submitted 126 pages of ‘undisputed facts,’ while Plaintiffs have submitted 339 pages of ‘responses and objections’ as well as 159 pages of ‘additional’ facts. In response, Reckitt submitted another 53 pages of ‘responses’ to Plaintiffs’ additional facts.”  Judge Goldberg concluded that “Plaintiffs have produced evidence that, if accepted, could establish that Reckitt’s conduct harmed consumer welfare through the combined effects of Reckitt’s switch from tablet to film, increase in the price of the tablet, fabrication and marketing of a ‘safety story’ about the dangers of the tablet, and the subsequent withdrawal of the tablet prior to generic entry” all of which “resulted in the market paying artificially high prices for Suboxone tablets.”    

Judge Goldberg also rejected Reckitt’s attacks on Plaintiffs’ damages calculations referring to its argument as “a belated Daubert motion” and explaining that “[a]lthough Reckitt couches these arguments as a challenge to Plaintiffs’ proof of damages, they are, in reality, a new attack on Plaintiffs’ experts’ methodology.”  The Judge explained that “[h]aving given the parties ample opportunity to raise Daubert challenges, I decline to consider any new challenges now.”  The Court has yet to set a trial date but it’s likely no more than a hop, skip and jump away.

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