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.
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.
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.
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.
District of Massachusetts
G&E represents Kaiser Foundation Health Plan and Kaiser Foundation Hospitals in an action brought under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) against Pfizer for its unlawful sales and marketing practices relating to the epilepsy drug Neurontin. The case was noteworthy as one of the very few to proceed to trial on a RICO claim relating to improper marketing of a drug, and in its rulings on causation and damages. In this case, the plaintiffs accuse Pfizer of marketing Neurontin as effective in the treatment of several disorders, including neuropathic pain and migraines, even though such claims were unsupported by scientific evidence. The RICO claims were tried before a jury in Boston in February 2010 resulting in a $47 million verdict in Kaiser’s favor, which is subject to automatic trebling under RICO for a $142 million damage award. In November 2010, the Court, in a lengthy opinion, awarded Kaiser $95 million in damages on an alternative claim under a California statue. Pfizer appealed to the United States Court of Appeals for the First Circuit. In a landmark opinion issued in April 2013, the Court affirmed the $142 million jury verdict in favor of the Firm’s client saying, “[Pfizer] directly influenced the doctors into prescribing the drug for off-label purposes, noting that its fraudulent marketing included paying Kaiser doctors to write medical articles with false information about the drug’s supposed off-label benefits.”
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.
District of New Jersey
Plaintiffs brought the antitrust class action on behalf of physicians and other health care providers nationwide, against Defendant Sanofi Pasteur alleging that Defendant monopolized United States markets for a number of pediatric vaccines, including pediatric meningitis vaccines. Plaintiffs allege that Sanofi abused its monopoly power by engaging in unlawful bundling practices, requiring physicians to either pay a penalty price or purchase an entire bundle of various Sanofi vaccines just in order to obtain Sanofi’s meningitis vaccine, Menactra. As a result of this bundling scheme, allege Plaintiffs, physicians and health care providers nationwide were overcharged for pediatric vaccine purchases by Defendant Sanofi.
The case was filed in the District of New Jersey on December 9, 2011. In addition to moving to dismiss, Defendant took the highly unusual step of filing a counterclaim against all members of the proposed class that would claim proceeds from any settlement. Plaintiffs prevailed on both fronts—successfully opposing not only the motion to dismiss, but also successfully getting Sanofi’s counterclaim dismissed. Discovery is in its early stages.
District of Delaware
Plaintiffs brought the antitrust class action against Defendant Braintree Laboratories alleging that Defendant monopolized the market for the drug polyethylene glycol 3350, which it markets under the brand name MiraLax, by using sham patent infringement lawsuits to delay market entry by less expensive generic competitors. The case was filed in the District of Delaware on March 12, 2007. Plaintiffs successfully opposed Braintree’s motion to dismiss on May 19, 2010.
Plaintiffs obtained a settlement of $17 million for a class of direct purchasers of MiraLax from Braintree in January 2012. Final approval of the settlement was granted on May 31, 2012.
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.
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.
District of Puerto Rico
Plaintiffs brought the antitrust class actions against Defendant shipping companies and executives alleging that Defendants conspired to restrain trade in the market for coastal water freight transportation services between the United States and Puerto Rico (“Puerto Rican Cabotage”). Plaintiffs alleged that Defendants Horizon, Sea Star, Crowley, Trailer Bridge, Saltchuk, the individual Defendants and their co-conspirators agreed to allocate customers, rig bids to customers, and fix the prices of rates, surcharges and other fees charged to customers of such shipping services.
The case was first filed on August 12, 2008 and subsequently centralized in the District of Puerto Rico by the Judicial Panel on Multidistrict Litigation.
Plaintiffs obtained a total of $66 million in settlements from Defendants for direct purchasers of Puerto Rican Cabotage. Final approval of the settlements was granted on September 13, 2011.
Southern District of New York
Consumer plaintiffs scored in a major antitrust class action settlement with Sirius XM Radio Inc. in a case that was on the verge of trial in May 2011. The class, which was made up of some 15 million subscribers of Sirius XM, claimed that the company broke antitrust laws by raising prices shortly after the 2008 merger between Sirius Satellite Radio and XM Satellite Radio. Presently, Sirius XM is the nation’s only satellite radio company. The case was filed on December 7, 2009.
The plaintiff subscribers claimed that the company violated antitrust laws and was a merger “to monopolize and eliminate competition” in the satellite radio market. The plaintiffs pointed out that before the merger, Sirius XM Chief Executive Officer Mel Karmazin convinced regulators not to block the deal by promising in congressional testimony in 2007 that “the combined company will not raise prices” and that the merger would actually result in “lower prices and more choice for the consumer…” However, the plaintiffs contended, following the merger Sirius XM “quickly reversed course and exercised its new-found monopoly power” by raising prices as much as 15-40% and eliminating multiple radio stations, which reduced consumer choice.
In court papers, the plaintiffs maintained that prior to the merger, Sirius and XM provided subscribers with free Internet access to their programming through a lower-speed connection. But in March 2009, Sirius XM eliminated that option, and began to require all subscribers seeking internet access to pay a $2.99 monthly charge. The plaintiffs further contended that one year after the merger was finalized Sirius XM again increased prices by charging an excessive “U.S. Music Royalty Fee” of 10% to 28%, as well as an additional radio fee.
Under the terms of the settlement, Sirius agreed to not raise prices for the remainder of 2011, which was valued at $180 million in benefits to subscribers. After the settlement was approved by the District Court, several class members who had objected to the settlement appealed to the Court of Appeals for the Second Circuit. The Court of Appeals affirmed approval of the settlement. One objector then filed a petition for certiorari with the United States Supreme Court, but on November 18, 2013, the Supreme Court denied certiorari.
District of Delaware
Plaintiffs brought the antitrust class action against Defendant AstraZeneca alleging that Defendant monopolized the market for the drug metoprolol succinate, which it markets under the brand name Toprol-XL, by using fraudulently obtained patents and sham patent infringement lawsuits to delay market entry by less expensive generic competitors. The case was filed in the District of Delaware on January 27, 2006. Plaintiffs successfully opposed AstraZeneca’s motion to dismiss on April 13, 2010.
Plaintiffs obtained a settlement of $20 million for a class of direct purchasers of Toprol XL from AstraZeneca in September 2011. Final approval of the settlement was granted on January 12, 2012.