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In re Lamictal Indirect Purchaser & Antitrust Consumer Litig.

United States District Court for the District of New Jersey

December 12, 2018, Decided; December 12, 2018, Filed

Civ. No. 12-cv-00995

Opinion

Walls, Senior District Judge

In this putative class action, Plaintiffs, purchasers of the drug lamotrigine, challenge the legality of a patent litigation settlement between the Defendant pharmaceutical companies. Plaintiffs now move to certify a direct purchaser class pursuant to Fed. R. Civ. P. 23. ECF No. 371. Decided without oral argument under Fed. R. Civ. P. 78, Plaintiffs' motion is granted.

FACTUAL BACKGROUND

This [*3]  matter has been litigated at length, and a full factual and procedural background is detailed in the Court's December 6, 2012 opinion. ECF No. 105. Directly relevant to this motion: Plaintiffs' theory of liability derives from Defendants' allegedly anticompetitive behavior and affects two subsets of direct purchaser plaintiffs who sustained damages therefrom. In sum, Plaintiffs allege that Defendant SmithKline Beecham Corporation (d/b/a GlaxoSmithKline) ("GSK") entered into a contract with Defendant Teva Pharmaceutical Industries Ltd. (and its subsidiary Teva Pharmaceuticals USA, Inc.) ("Teva") that caused antitrust injury. Specifically, during litigation between Defendants, Judge Bissell of this District ruled from the bench that Teva had shown that at least one claim relating to the patent for Lamictal—the brand name epilepsy and bipolar disorder drug marketed by GSK—was invalid, which strongly indicated that Teva would be successful on the rest of its claims against the patent. Class Action Complaint ("CAC"), ECF No. 55 ¶ 56. Shortly thereafter, GSK and Teva reached a settlement agreement wherein GSK made two large concessions to Teva. First, Teva was permitted to sell generic lamotrigine [*4]  chewables—separate and apart from Lamictal tablets and a much smaller relative share of the market1—three years before GSK's patent was set to expire. Id. ¶¶ 70-72. Second, GSK agreed not to launch an authorized generic ("AG") until six months after the expiration of the patent (the "no-AG agreement"), giving Teva a significant running start in the lamotrigine market share. Id. ¶¶ 76-77.

Plaintiffs claim two subsets of damages resulting to the direct purchaser putative class from Defendants' actions. First, brand purchasers were harmed because but for the settlement agreement, the Lamictal patent would have been invalidated and Teva would have been able to sell generic lamotrigine three years earlier, which would have allowed Lamictal purchasers to either buy Lamictal at a lower price (based on simple economics) or simply purchase the generic at a lower cost. Id. ¶¶ 112-114; 132. Second, generic purchasers were harmed because but for the settlement agreement, GSK would have not been bound by the no-AG agreement and would have produced their own generic six months earlier, which would have dropped prices in generic lamotrigine across the board. Id. ¶ 149. These in total are the alleged [*5]  damages suffered by the direct purchaser class.

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2018 U.S. Dist. LEXIS 209993 *; 2018 WL 6567709

IN RE: LAMICTAL INDIRECT PURCHASER AND ANTITRUST CONSUMER LITIGATION; THIS DOCUMENT RELATES TO: ALL ACTIONS

Notice: NOT FOR PUBLICATION

Subsequent History: Vacated by, Remanded by Lamictal Direct Purchaser Antitrust Litig., 2020 U.S. App. LEXIS 12899 (3d Cir., Apr. 22, 2020)

Prior History: In re Lamictal Direct Purchaser Antitrust Litig., 2012 U.S. Dist. LEXIS 152944 (D.N.J., Oct. 23, 2012)

CORE TERMS

damages, generic, purchasers, predominance, lamotrigine, class action, Tablets, brand, class member, class certification, brand-generic, antitrust, theory of liability, calculation, penetration, certify, joinder, prices, generic-generic, numerosity, quotations, classwide, parties, merits, patent, switch, question of law, anticompetitive, pharmaceutical, impracticable