Jon Campisi Nov. 22, 2013, 8:02am


A federal antitrust complaint has been filed against Teva Pharmaceuticals

and other generic drug manufacturers alleging the defendants engaged in an anti-competitive scheme to prevent a generic equivalent of the drug Aggrenox from entering the market.

The class action suit, which was brought by Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund on behalf of itself and others similarly situated, accuses the defendants of colluding to keep a generic version of Aggrenox off the market.

The pharmaceutical is a combined aspirin and extended-release dipyridamole treatment to lower the risk of stroke in people who have had a transient ischemic attack or stroke due to a blood clot.

According to the complaint, Boehringer Ingelheim Pharma started selling Aggrenox in the winter of 199, with the drug soon seeing great commercial success; sales reached $366 million in 2008.

In January 2007, the suit states, Barr Pharmaceuticals, another co-defendant named in the litigation, sought regulatory approval to market a generic version of the drug.

The complaint goes on to allege that in order to delay the “substantial loss of profits” it would have suffered from competing generic versions of Aggrenox, Boehringer, in the summer of 2008, entered into an exclusive payment agreement, also called a “pay-for-delay” agreement, with Barr, by which Boehringer agreed to pay Barr in exchange for Barr’s commitment to postpone marketing its generic version of the medicine until July 1, 2015.

The alleged agreement included an estimated $120 million in one-time and yearly royalty payments, and a promise to not compete against Barr with Boehringer’s own authorized generic version of Aggrenox, according to the complaint.

The plaintiff claims that it and others have paid more for Aggrenox than it would have absent the defendants’ “anti-competitive conduct.”

“But for the pay-for-delay agreement, less expensive equivalents of Aggrenox would have been available much sooner than July 2015,” the complaint states.

The plaintiff brings suit on behalf it itself and a proposed class of consumers and third-party payors who purchased or paid for Aggrenox since Aug. 14, 2009.

The lead plaintiff in the action is based in Springfield, MO.

Aside from Teva, Boehringer and Barr, the other defendants listed in the litigation is Duramed Pharmaceuticals Inc.

The complaint says that fraudulent concealment tolled the statute of limitations in the matter, since the plaintiff and class members had no knowledge of the defendants’ “unlawful self-concealing scheme” and would not have been able to discover the conspiracy through the “exercise of reasonable diligence” more than four years prior to the filing of the lawsuit.

“This is true because the nature of defendants’ conspiracy was self-concealing and because the defendants employed deceptive practices and techniques of secrecy to avoid detection of, and to fraudulently conceal, their contract, combination, conspiracy, and scheme,” the suit reads.

The defendants are accused of violating The Clayton Act and The Sherman Act.

The suit also contains counts of unjust enrichment and disgorgement of profits.

The plaintiff seeks declaratory judgment, litigation costs, attorneys’ fees and other relief.

The complaint was filed by attorneys Jeannine Kenney and Brent W. Landau, of the Philadelphia firm Hausfeld LLP, and lawyers Lee Albert and Gregory B. Linkh, of the New York firm Glancy Binkow & Goldberg.

 

The federal case number is 2:13-cv-06692-MSG. 

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