In re Generic Pharm. Pricing Antitrust Litig.

Decision Date10 May 2022
Docket Number16-PV-27242,16-CM-27242,16-CB-27242
PartiesIN RE GENERIC PHARMACEUTICALS PRICING ANTITRUST LITIGATION THIS DOCUMENT RELATES TO: In re Clobetasol Cases (End-Payer) In re Clomipramine Cases (End-Payer) In re Pravastatin Cases (End-Payer) No. MDL 16-MD-2724
CourtU.S. District Court — Eastern District of Pennsylvania

IN RE GENERIC PHARMACEUTICALS PRICING ANTITRUST LITIGATION THIS DOCUMENT RELATES TO: In re Clobetasol Cases (End-Payer) In re Clomipramine Cases (End-Payer) In re Pravastatin Cases (End-Payer) No. MDL 16-MD-2724

Nos. 16-CB-27242, 16-CM-27242, 16-PV-27242

United States District Court, E.D. Pennsylvania

May 10, 2022


MEMORANDUM OPINION

Rufe, J.

Defendants in this multidistrict antitrust litigation have moved to dismiss certain state law claims and to strike certain allegations raised by the End-Payer Plaintiffs (“EPPs”) with respect to the following generic drugs: (1) clobetasol; (2) clomipramine; and (3) pravastatin.[1] For the reasons set forth below, the Court denies Defendants' joint motion.

I. BACKGROUND

The background relevant to this decision is set forth at length in the Court's opinions of October 16, 2018[2] and February 15, 2019.[3] The Court assumes familiarity with those opinions, and will not restate the background in detail.[4] In short and at a general level, EPPs allege that

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Defendants, the manufacturers of generic pharmaceuticals, engaged in an unlawful scheme or set of schemes to fix, maintain, and stabilize prices and rig bids, and that Defendants engaged in market and consumer allocations of certain generic pharmaceutical products, including clobetasol, clomipramine, and pravastatin. In relevant part, EPPs assert several claims for monetary damages under state antitrust and consumer protection laws as well as claims for unjust enrichment.[5] In doing so, they seek to avoid the limitation on the availability of monetary damages for federal antitrust claims.[6]

In their consolidated amended complaints, EPPs also allege that Defendants participated in a broader unlawful conspiracy. In each of the clobetasol, clomipramine, and pravastatin complaints, EPPs assert claims related to the single pharmaceutical at issue, but they contend that “Defendants' unlawful anticompetitive conduct with respect to [these pharmaceuticals] is part of a larger conspiracy or series of conspiracies involving numerous generic pharmaceuticals and pharmaceutical manufacturers.”[7]

A. EPPS

The EPPs include employee welfare benefits funds, labor unions, private insurers, and municipalities, as well as individual plaintiffs; they allege either that they indirectly purchased generic pharmaceuticals manufactured by Defendants or that they provided reimbursements for

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some or all of the purchase price for clobetasol, clomipramine, and/or pravastatin. The following table sets forth the specific EPPs for each single-product complaint:[8]

End-Payer Plaintiffs

Clobetasol

Clomipramine

Pravastatin

1199SEIU National Benefit Fund

X

1199SEIU Greater New York Benefit Fund

X

1199SEIU National Benefit Fund for Home Care Workers

X

1199SEIUS Licensed Practical Nurses Welfare Fund

X

American Federation of State, Comity and Municipal Employees Council 37 Health & Security Plan

X

X

X

The City of Providence

X

X

Hennepin County

X

Louisiana Health Service & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana and HMO Louisiana, Inc.

X

X

X

Robby Johnson

X

Self-Insured Schools of California

X

X

X

Sergeants Benevolent Association of the Police Department of the City of New York Health and Welfare Fund

X

X

David Sherman

X

Uniformed Fire Officers Association Family Protection Plan Local 854

X

X

United Food & Commercial Workers and Employers Arizona Health and Welfare Trust

X

Unite Here Health

X

X

X

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In their complaints, EPPs assert antitrust, consumer-protection, and unjust-enrichment claims under the laws of several states and territories as set forth in the following table:[9]

Jurisdiction

State Antitrust

Consumer Protection

Unjust Enrichment

CB

CM

PV

CB

CM

PV

CB

CM

PV

Alabama

X

X

X

Alaska

X

X

X

X

X

X

Arizona

X

X

X

X

X

X

Arkansas

X

X

X

X

X

X

California

X

X

X

X

X

X

X

X

X

Colorado

X

X

X

X

X

X

Connecticut

X

X

X

X

X

X

Delaware

X

X

X

X

X

X

District of Columbia

X

X

X

X

X

X

X

X

X

Florida

X

X

X

X

X

X

Georgia

X

X

X

X

X

X

Hawaii

X

X

X

X

X

X

X

X

X

Idaho

X

X

X

Illinois

X

X

X

X

X

X

Indiana

Iowa

X

X

X

X

X

X

Kansas

X

X

X

X

X

X

Kentucky

X

X

X

Louisiana

X

X

X

Maine

X

X

X

X

X

X

Maryland

X

X

X

X

X

X

Massachusetts

X

X

X

X

X

X

Michigan

X

X

X

X

X

X

X

X

X

Minnesota

X

X

X

X

X

X

X

X

X

Mississippi

X

X

X

X

X

X

Missouri

X

X

X

X

X

X

Montana

X

X

X

X

X

X

Nebraska

X

X

X

X

X

X

X

X

X

Nevada

X

X

X

X

X

X

X

X

X

New Hampshire

X

X

X

X

X

X

X

X

X

New Jersey

X

X

X

X

X

X

New Mexico

X

X

X

X

X

X

X

X

X

New York

X

X

X

X

X

X

X

X

X

North Carolina

X

X

X

X

X

X

X

X

X

4

Jurisdiction

State Antitrust

Consumer Protection

Unjust Enrichment

CB

CM

PV

CB

CM

PV

CB

CM

PV

North Dakota

X

X

X

X

X

X

X

X

X

Ohio

Oklahoma

X

X

X

Oregon

X

X

X

X

X

X

Pennsylvania

X

X

X

Puerto Rico

X

X

X

Rhode Island

X

X

X

X

X

X

X

X

X

South Carolina

X

X

X

X

X

X

South Dakota

X

X

X

X

X

X

X

X

X

Tennessee

X

X

X

X

X

X

Texas

X

X

X

Utah

X

X

X

X

X

X

X

X

X

U.S. Virgin Islands

X

X

X

X

X

X

Vermont

X

X

X

X

X

X

X

X

X

Virginia

X

X

X

X

X

X

Washington

X

X

X

West Virginia

X

X

X

X

X

X

X

X

X

Wisconsin

X

X

X

X

X

X

X

X

X

Wyoming

X

X

X

EPPs reside in or are headquartered in several, but not all, of the jurisdictions listed above.[10] They allege that they indirectly purchased or made reimbursements for clobetasol, clomipramine, and pravastatin in the jurisdictions under whose law they assert claims.[11] They assert these claims individually and on behalf of classes, seeking damages for “[a]ll persons and entities in [every state except Ohio and Indiana as well as the District of Columbia, Puerto Rico, and the U.S. Virgin Islands] who indirectly purchased, paid and/or provided reimbursement for some or all of the purchase price” for clobetasol, clomipramine, and pravastatin.[12]

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B. Defendants

Defendants are alleged to have manufactured and sold generic pharmaceuticals throughout the United States.[13] The specific generic pharmaceutical each Defendant manufactured is identified in the following table[14]:

Defendant

Clobetasol

Clomipramine

Pravastatin

Actavis Holdco. U.S., Inc. and Actavis Pharma, Inc.

X

Akorn Inc., Akorn Sales, Inc., and Hi-Tech Pharmacal Co., Inc.

...

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