Antitrust

Since 2008, we have represented one of the country’s largest pharmaceutical retailers and a large regional grocery store chain in an action against American Express alleging that the card network’s rules preventing merchants from steering customers to cheaper forms of payment violate federal antitrust laws. We were the lead authors of Plaintiffs’ response to defendants’ motion for judgment on the pleadings filed against all plaintiffs. In March 2010, Judge Nicholaus Garaufis denied the motion. Shortly thereafter, the Department of Justice and the attorneys general of nearly twenty states joined the litigation against American Express. The DOJ tried its case against American Express in 2014 in a bench trial before Judge Garaufis and secured a verdict in its favor, finding that American Express’ rules are anticompetitive. That decision is currently on appeal to the Second Circuit.

This antitrust case challenges two reverse payment settlements made by a brand name manufacturer to two generic manufacturers to compensate them for agreeing to delay generic AndroGel, a testosterone supplement. We are litigating this private case with the Federal Trade Commission’s enforcement action. The district court’s dismissal of the FTC’s case resulted in the Supreme Court’s ruling in Federal Trade Commission v. Actavis, 133 S. Ct. 2223 (2013), the seminal Supreme Court case addressing reverse payment settlements. In its June 2013 ruling, the Supreme Court endorsed the rule of reason analysis that our amicus brief proposed and rejected the restrictive test of the pharmaceutical manufacturers that had previously been accepted by a number of circuit courts. Following the Supreme Court’s ruling, our clients’ case was remanded to the district court for further proceedings.

This is the reverse payment case that set up the circuit split that resulted in the Supreme Court accepting certiorari in the Actavis case. The case challenges payments by brand name pharmaceutical manufacturer Schering-Plough to generic manufacturer Upsher Smith to settle patent litigation involving K-Dur, a branded potassium supplement. In July 2012, the Third Circuit issued a landmark decision adopting our arguments and holding that reverse payments to settle patent litigation are prima facie evidence of an unreasonable restraint of trade. In the Third Circuit, we spearheaded the briefing on behalf of all plaintiffs and argued this case.

These reverse payment cases challenge non-cash reverse payment settlements made by a brand name manufacturer to a generic manufacturer to delay the introduction of generic versions of these branded drugs. Following the district court’s grant of separate motions to dismiss each case, we appealed both rulings to the Third Circuit on behalf of our individual retailer clients. We were primarily responsible for drafting the briefs in both appeals.

This is an antitrust case challenging a reverse payment made by GSK to delay generic versions of Lamictal, GSK’s branded epilepsy treatment. The district court dismissed the complaint on the grounds that GSK’s agreement to refrain from introducing an authorized generic, worth hundreds of millions of dollars to the generic manufacturer, did not fall within the Supreme Court’s opinion in Actavis because it was not a cash payment. This case is the first appellate case interpreting Actavis. We authored an amicus brief on behalf of the National Association of Chain Drug Stores. Based on our unique, decade-long experience in litigating reverse payment cases, our brief detailed the history of reverse payment agreements, explained why the district court’s opinion would be a triumph of form over economic substance, and explained how the court should apply the rule of reason in reverse payment cases, an issue that has been hotly debated since Actavis was decided. In an opinion issued in June of 2015, the Third Circuit held that non-cash reverse payments such as a no-authorized generic agreement present the same anticompetitive concerns raised by cash reverse payments

We are liaison counsel representing a class of direct purchasers of mushrooms challenging prices fixed by the Eastern Mushroom Marketing Cooperative (“EMMC”), an alleged agricultural cooperative, and its members. On March 26, 2009, the district court agreed with us that the EMMC was not entitled to Capper-Volstead immunity and granted partial summary judgment to plaintiffs. The EMMC and its members filed an interlocutory appeal of that order to the Third Circuit Court of Appeals. Based on our briefs and argument, the Third Circuit concluded that the district court’s summary judgment order was not an immediately appealable collateral order. Accordingly, it dismissed the appeal and remanded to the district court. After extensive dispositive motion and Daubert practice, the parties are now awaiting a ruling on plaintiffs’ motion for class certification, which we primarily drafted and argued.

This antitrust case accused Warner Chilcott of engaging in “product hopping” to unlawfully monopolize the market for Doryx, a branded antibiotic used to treat acne. “Product hopping” is a practice in which brand manufacturers continually reformulate their branded products in ways that provide no real consumer benefit but interfere in the ability of generic manufacturers to introduce their lower-priced products. During the expert discovery phase of this case, we secured a favorable, but confidential settlement for our clients.

This antitrust case challenges an overall scheme to delay the entry of generic Nexium, a branded heartburn treatment. The scheme involved at least two non-cash payments to generic manufacturers seeking to introduce generic Nexium. In September 2013, Judge Young was one of the first judges to interpret the Supreme Court’s Actavis ruling. In his opinion denying defendants’ motion to dismiss, Judge Young endorsed our view that a reverse payment need not be in cash. He held that non-cash terms such as an agreement by the brand manufacturer to refrain from introducing its own authorized generic and the settlement of an unrelated case on a sweetheart basis could constitute a reverse payment.

We represent one of the country’s largest pharmaceutical retailers and two large regional grocery store chains in this antitrust action against Visa and MasterCard challenging the collusion of member banks in establishing and fixing the “interchange fees” and other fees charged to merchants for transactions processed over the Visa and MasterCard networks. Hangley Aronchick was responsible for the development of the economic theory of the case for all opt-out plaintiffs. This effort included working with Nobel-prize winning economist Joseph Stiglitz. On July 13, 2012, after extensive expert discovery and the briefing of summary judgment and Daubert motions, the class and the defendants announced a settlement pursuant to which Visa, MasterCard and their client banks agreed to pay $6.05 billion to a proposed class of merchants that could encompass millions of retailers. At the same time that the class settlement was announced, the networks announced a separate deal with merchants, including our clients, that had asserted their own claims. The terms of that separate deal are confidential. Since settling on behalf of our initial clients, we filed new cases on behalf of others who opted out of the class settlement. Recently, the Second Circuit has vacated the certification of the class, reversed approval of the class settlement, and remanded to the district court. The Court’s opinion does not affect the separate monetary settlements of the clients that we represented.

This antitrust case involves an overall scheme to delay entry of generic versions of Skelaxin, a branded muscle relaxant. We filed suit on behalf of individual plaintiffs, alleging an anticompetitive scheme that consisted of the Defendants’: (1) wrongful listing of three patents in the Orange Book; (2) initiation and prosecution of baseless sham litigation to enforce those patents; (3) entry into an unlawful market allocation agreement with a generic manufacturer of the drug in which that generic company agreed not to launch generic Skelaxin in the United States in exchange for payments that have so far exceeded $200 million; and (4) a campaign of filing meritless Citizen Petitions with the FDA to delay FDA approval of generic Skelaxin. The judge reverse-bifurcated the case and ordered that damages be tried first. In June 2014, our firm served as co-lead counsel and tried the damages phase. The jury found in favor of our clients, but the amount of the verdict was sealed by the Court. We now await trial on liability.