Northern District of California

G&E achieved a major settlement on behalf of plaintiff purchasers of anti-HIV medicine in an antitrust class action against pharmaceutical giant Abbott Laboratories. The $52 million settlement was achieved in the middle of trial – a noteworthy feat for the plaintiffs: California’s Daily Journal reported that the settlement was nearly 15 times what the remaining plaintiff, GlaxoSmithKline, was eventually awarded by the jury. The plaintiff class was made up of direct purchaser drug retailers and wholesalers who had bought the prescription drugs Norvir and Kaletra, both manufactured by Abbott Labs. In December 2003, Abbott Labs raised Norvir’s wholesale price by 400%.  Final approval of the $52 million settlement was granted by federal district court judge Claudia Wilken.

Eastern District of New York

Grant & Eisenhofer represents CVS Pharmacy in litigation brought under Sections 1 and 2 of the Sherman Act against American Express challenging certain rules imposed on merchants that accept American Express charge and credit cards known as “anti-steering” rules.  The case, filed in June 2008, is consolidated with other individual cases brought by other major merchants.  The case alleges that the anti-steering rules prohibited CVS and other merchants from doing anything that could lead or “steer” a retail purchaser to use a lower priced payment card product than an American Express card, prohibited surcharging and discounting and other practices, which resulted in higher merchant fees to the merchants, higher retail prices to the merchant’s customers and other harm to competition.

On October 4, 2010, the Department of Justice and seven states sued American Express in a civil action brought in the Eastern District of New York challenging the same rules and the cases are being coordinated.

District of Massachusetts

Grant & Eisenhofer represents Kaiser Foundation Health Plan and Kaiser Foundation Hospitals in an action brought under the federal civil-racketeering law against Pfizer for unlawful sales and marketing practices related to the epilepsy drug Neurontin. The RICO claims in the case were tried before a jury in Boston in February 2010 resulting in a $47 million verdict in favor of Kaiser, which is subject to automatic trebling under RICO for a $142 million damage award. On November 3, 2010 the Court, in a lengthy opinion, awarded Kaiser $95 million in damages on an alternative claim under a California statue. Pfizer is appealing the case to the First Circuit.

Northern District of Georgia

Grant & Eisenhofer is co-lead counsel representing Meijer, Inc. in an antitrust direct purchaser class action brought against Unimed Pharmaceuticals, Solvay Pharmaceuticals, and generic manufacturers Watson Pharmaceuticals, Par Pharmaceuticals and Paddock Laboratories. AndroGel is a branded drug marketed by Solvay for topical use as a testosterone replacement therapy for males with a deficiency or absence of endogenous testosterone. Plaintiffs allege that Solvay entered a conspiracy to restrain trade, and engaged in a scheme to monopolize the U.S. market for AndroGel and its AB-rated generic equivalents, by substantially delaying the onset of generic competition of AB-rated generic versions of AndroGel. Among other aspects of its exclusionary scheme, Solvay: (a) wrongfully listed its patent in the Food & Drug Administration (“FDA”) publication commonly referred to as the “Orange Book”); (b) wrongfully filed and prosecuted baseless, “sham” litigation against its prospective generic competitors Par, Paddock, and Watson in order to trigger automatic 30-month regulatory stays prohibiting the FDA from granting final approval to companies seeking to sell bioequivalent generic versions of AndroGel; and (c) entered into agreements with the Generic Defendants, whereby Solvay agreed to pay the Generic Defendants millions of dollars, as well as provide other compensation, in exchange for agreements by the Generic Defendants not to sell their respective AB-rated generic versions of AndroGel for nearly a decade. Specifically, through these agreements, the Generic Defendants agreed not to compete with Solvay’s AndroGel product until at least 2015.

Southern District of New York

Grant & Eisenhofer is co-lead counsel, representing Meijer, Inc., in a proposed class of direct purchasers of the tablet form of DDAVP (desmopressin acetate), an anti-diuretic drug. Defendants Ferring B.V., Ferring Pharmaceuticals and Aventis Pharmaceuticals are alleged to have worked together to extend their monopoly on DDAVP through a multi-faceted scheme, including defrauding the U.S. Patent and Trademark Office into issuing a patent for DDAVP tablets, improperly listing that patent in an Food and Drug Administration registry known as the “Orange Book,” filing sham patent litigation against prospective generic competitors and filing a sham citizen petition with the FDA. The case was settled for $20.25 million and on November 2, 2011 the Court granted approval to the settlement.

Eastern District of New York

Grant & Eisenhofer represents Meijer, Inc., Publix Supermarkets, Inc., SuperValu, Inc., Wakefern Food Corporation, Raley’s, QVC, and other major merchants in an antitrust action against Visa and MasterCard. In June 2005, these retail chains filed private antitrust suits related to credit card interchange fees. Class action lawsuits were also filed, and all of the cases were centralized in the Eastern District of New York. The suits allege that Visa and MasterCard have engaged in collusive practices to fix the interchange fees at artificially high rates, and that certain rules promulgated and enforced by Visa and MasterCard are anticompetitive and artificially increase the interchange fees paid to card issuing banks by the merchants. On October 4, 2010, the Department of Justice sued Visa and MasterCard for much of the conduct alleged in the pending suits. The DOJ used the record that the private plaintiffs had developed to bring its litigation. On that same day that the government suit was filed, both Visa and MasterCard entered into consent agreements with the DOJ.

Middle District of Florida

Grant & Eisenhofer is co-lead counsel for a proposed class of direct purchasers of photochromic lenses in an antitrust action brought against Transitions Optical, Inc., the largest manufacturer of photochromic treatments for eyeglasses which darken when exposed to UV light, and fade to clear when removed from UV light; Essilor of America, Inc., the largest lens manufacturer in the U.S.; and Essilor Laboratories of America, Inc., which owns and controls the largest network of wholesale prescription eyeglass laboratories in the U.S. The action alleges a conspiracy from 1999 to March 2010 to monopolize the market by an extensive web of exclusive dealing arrangements at every level of the distribution chain designed to foreclose key distribution channels for existing rivals and impede market entry by potential rivals into the market for photochromic treatments for eyeglass lenses.

Eastern District of Pennsylvania

Grant & Eisenhofer is a member of the Executive Committee in a proposed direct purchaser class action concerning modafinil (Provigil), a prescription drug which treats sleeping disorders and is manufactured and sold by defendant Cephalon, Inc. Just prior to the expected entry of generic competition for Provigil, Cephalon entered into agreements with nearly all of its anticipated generic rivals, including Barr Laboratories, Teva Pharmaceutical Industries, Ltd, Teva Pharmaceuticals USA, Inc., Ranbaxy Laboratories, Ltd., Ranbaxy Pharmaceuticals, Inc. and Mylan Laboratories, Inc. Because these companies are entitled to an exclusivity period under federal law known as the Hatch-Waxman Act, delaying their entry also froze out other potential generic competitors such as Apotex Corporation. As a result, purchasers continue to pay inflated prices on their modafinil purchases. The Federal Trade Commission has also filed a complaint against Cephalon for monopolization, which is being litigated with the private cases.