UNITED STATES DISTRICT COURTT EASTERN DISTRICT OF …€¦ · ORATORIE NC., MYLA LS INC., PA L,...
Transcript of UNITED STATES DISTRICT COURTT EASTERN DISTRICT OF …€¦ · ORATORIE NC., MYLA LS INC., PA L,...
UFCW Lof itself a v DR. REDLABORAPHARMPHARMPHARMZYDUS
1
similarly
recover d
others sim
manufact
extended
product i
2
manufact
generic d
3
Plaintiff’
LOCAL 1500and all other
Plaint
.
DDY’S LABATORIES, IACEUTICAACEUTICAACEUTICAPHARMAC
Defen
Plaint.
y situated, bri
damages and
milarly situa
turers in the
d-release tabl
in the United
Plaint.
turers, includ
drugs, includ
Plaint.
s own acts a
UNITEASTER
0 WELFARrs similarly s
tiff,
BORATORIEINC., MYLAALS INC., PAAL, INC., PAAL COMPANCEUTICALS
ndants.
tiff UFCW L
ings this cla
d obtain injun
ated have sus
world, arisin
lets (“divalp
d States.
tiff’s claims
ding Defend
ding divalpro
tiff’s allegati
and upon inf
TED STATERN DISTRI
RE FUND, onsituated,
ES, INC., IMAN INC., MAR
AR NIES, INC.,S (USA) INC
Local 1500 W
ss action for
nctive and e
stained again
ng from thei
roex ER”), a
arise from a
dants here, to
oex ER, whic
ions are mad
formation an
ES DISTRIICT OF PE
n behalf
MPAX YLAN
, and C.,
Welfare Fund
r claims unde
quitable reli
nst Defendan
ir conspiracy
and to alloca
a broad-based
o raise and fi
ch is at issue
de on person
nd belief as to
ICT COURTENNSYLVA
No. _____ CLASS A JURY TR
d, on behalf
er federal an
ief for the su
nts, the large
y to raise the
ate markets a
d conspiracy
ix the prices
e in this Com
nal knowledg
o all other m
T ANIA
___
ACTION CO
RIAL DEMA
of itself and
nd state antit
ubstantial inj
est generic d
e prices of di
and custome
y by numero
of more tha
mplaint.
ge as to Plain
matters.
OMPLAINT
ANDED
d all others
trust laws to
uries it and
drug
ivalproex so
ers for this
ous generic d
an a dozen
ntiff and
odium
drug
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 1 of 51
4
treatment
essential
5
which div
6
of that tim
priced at
results in
prices.
7
increases
the price
Office (“
between
8
were the
well as a
largest ge
Mylan In
Compani
1 See
Extraordin
Divalp.
t of migraine
medicine by
Signif.
valproex ER
Gener.
me, has been
less than a d
n vigorous pr
Recen.
s. Between th
of divalproe
“GAO”) note
2010 and 20
These.
result of De
llocate custo
eneric drug m
nc.; Mylan P
ies, Inc.; and
GAO, Generic
nary Price Incr
proex ER is
es and seizur
y the World
ficantly, diva
R is derived,
ric versions o
n priced sign
dollar per tab
rice competi
ntly, howeve
he fourth qu
ex ER has in
ed that divalp
015.1
e price hikes
efendants’ co
omers and m
manufacture
harmaceutic
d Zydus Phar
c Drugs Underreases, No. 16-
NATURE O
a commonly
res, and its b
Health Orga
alproex ER i
valproate, h
of divalproe
nificantly low
blet. This is
ition, benefit
er, generic di
uarter of 2013
ncreased ove
proex ER ha
were not the
onspiracy to
markets for, d
ers: Dr. Redd
cals Inc.; Par
rmaceuticals
r Medicare: Pa-706, App’x III
- 2 -
OF THE AC
y prescribed
base compou
anization.
is not new co
has been kno
x ER has be
wer than its b
because the
ting consume
ivalproex ER
3 and the be
er 500%. The
ad experienc
e result of co
fix, raise, m
divalproex E
dy’s Laborat
r Pharmaceu
s (USA) Inc.
art D Generic DI (Aug. 2016),
CTION
d anticonvuls
und, valproa
ompound. T
wn since the
een on the m
branded cou
presence of
ers and third
R has experi
ginning of th
e U.S. Gover
ced “extraord
ompetitive m
maintain, and
ER. Defendan
tories, Inc.; I
utical, Inc.; P
.
Drug Prices Dhttp://www.ga
sant indicate
ate, has been
The essential
e late 19th ce
market for yea
unterpart—in
f generic dru
d-party payo
enced unpre
he second qu
rnment Acco
dinary price
market force
d stabilize the
nts are amon
Impax Labor
Par Pharmace
Declined Overaao.gov/assets/6
d for the
designated
ingredient f
entury.
ars and, for m
n many insta
ugs usually
ors through lo
ecedented pri
uarter of 201
ountability
increases”
s; instead, th
e prices of, a
ng the world
ratories, Inc
eutical
ll, but Some H680/679022.pdf
an
from
most
ances
ower
ice
14,
hey
as
d’s
.;
Had f .
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 2 of 51
9
meetings
Generic P
low num
Defendan
supracom
1
enforcers
Antitrust
leading a
antitrust
in a broa
dozen ge
arise from
investiga
prices.
1
issuing su
pricing o
DOJ’s an
documen
Defen.
s, both in priv
Pharmaceuti
bers of comp
nts’ anticom
mpetitive pric
Defen0.
s, members o
t Division (“
a multi-state
probes into a
d-based con
eneric drugs,
m a federal g
ating whethe
DOJ’s1.
ubpoenas to
of generic dig
nd CTAG’s s
nts and testim
ndants orche
vate and at p
ical Associat
petitors and
mpetitive acti
cing to the p
ndants’ price
of Congress,
DOJ”) and t
working gro
allegations t
spiracy to fi
including d
grand jury pr
r Defendant
s and CTAG
Lannett and
goxin tablets
subpoenas to
mony concer
strated their
public events
tion (“GPhA
barriers to e
ons and hav
present.
e increases ha
, the press, a
the Connecti
oup of state a
that as many
x, raise, mai
divalproex ER
roceeding in
s and other d
G’s investigat
d Impax conc
s—a commo
o Impax and
rning the pric
- 3 -
conspiracy
s, such as tra
A”), among o
entry in the m
e allowed th
ave also grab
and drug purc
icut Attorney
attorneys ge
y as a dozen g
intain, and st
R. Significan
n the Eastern
drug manufa
tions started
cerning their
only prescrib
d Lannett, DO
cing of digox
through secr
ade associati
others. Oligo
market for di
hem to sustai
bbed the atte
chasers. The
y General’s
neral—are c
generic drug
tabilize the p
ntly, DOJ ha
n District of P
acturers cons
d in summer
r contacts w
bed heart me
OJ also subp
xin.
ret communi
ion meetings
opolistic con
ivalproex—f
in their unlaw
ention of gov
e Departmen
Office (“CT
conducting s
g manufactur
prices of as m
as issued sub
Pennsylvani
spired to fix
2014, with e
with competit
edication. Fo
poenaed Par,
ications and
s held by the
nditions—e.g
facilitated
wful
vernment
nt of Justice’
TAG”)—whi
sweeping
rers particip
many as two
bpoenas whi
a that is
generic drug
each agency
tors, sales, an
ollowing the
, seeking
d
e
g.,
s
ich is
ated
o-
ich
g
y
nd
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 3 of 51
1
doxycycl
subpoena
1
subpoena
two senio
seeking,
generic p
competit
14
DOJ subp
and verap
represent
requirem
1
against m
analyst h
2 Taro
SECText&wJkRTRV
3 Mylhttp://apps2LQZGT&
By lat2.
line such as
as.
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as from the D
or officers in
among other
pharmaceutic
or contacts a
And m4.
poena conce
pamil—and
ts a significa
ment.
The D5.
many generic
has estimated
o, SEC Form 6
&TEXT=aHR0cVE9MCZTRVE
lan SEC Form .shareholder.co
&docid=116784
te 2014, DO
Actavis, Lan
gust 2016, T
DOJ. In Sept
n its commer
r things, “co
cal products
and pricing o
most recently
erning four a
that search w
ant escalation
DOJ’s investi
c drug manu
d, for examp
6-K (Sept. 9, 20cDovL2FwaS5
E9MCZTUURF
10-Q, at 58 (Nom/sec/viewer486#MYL10Q
J’s probe ex
nnett, Mayne
Teva and Dr.
tember 2016
rcial team, re
ommunicatio
.”2 Zydus is
of divalproex
y, on Novem
additional dru
warrants had
n of the DOJ
igation could
facturers, in
le, that Teva
016), http://phx50ZW5rd2l6YXFU0M9U0VDV
Nov. 10, 2016),Content.aspx?c
Q_20160930XD
- 4 -
xpanded furth
e Pharma, M
. Reddy’s als
6, Taro Pharm
eceived gran
ons with com
also under f
x ER.
mber 10, 201
ugs—cidofo
d been execu
J’s investiga
d also result
cluding thos
a could face
x.corporate-ir.nXJkLmNvbS9mVElPTl9FTlRJ
, companyid=AB
DOC_HTM_S5
her to includ
Mylan, and P
so disclosed
maceuticals,
nd jury subpo
mpetitors and
federal inves
6, Mylan dis
ovir, clipizid
uted.3 The is
ation given th
t in the impo
se named as
liability of b
net/phoenix.zhmaWxpbmcueJUkUmc3Vic2
BEA-582E80BDD42
de manufactu
ar, which all
d that they re
, disclosed th
oenas from t
d others rega
stigation con
sclosed that
de-metformin
suance of w
he probable
osition of sub
Defendants
between $30
html?c=114698eG1sP2lwYWd2lkPTU3.
215D11A4040
urers of
l received si
eceived
hat it, “as we
the [DOJ],”
arding the sa
ncerning its
it had receiv
n, propranolo
warrants
cause
bstantial fine
here. One
00 million an
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imilar
ell as
ale of
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es
nd
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97.
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 4 of 51
$700 mil
Another
1
requested
Sun, Tev
doxycycl
informati
drugs tha
albuterol
hydrochl
1
of the pro
that, after
drug man
2016.5
1
of divalp
prices for
4 Eric
(Nov. 10, 2liabilities-a
5 See BloombergCollusion Creport-of-p(Nov. 3, 20
llion, while M
analyst estim
In add6.
d informatio
va, West-Wa
line, and dig
ion from De
at have simil
l sulfate, glyc
lorothiazide.
Signif7.
osecution ph
r two years o
nufacturers,
As a r8.
proex ER, co
r these gener
c Saonowsky, D2016), http://wanalyst-says.
David McLaug (Nov. 3, 2016Charges, Wall
possible-probe-016), http://reu
Mylan could
mated that fin
dition to DO
n from gene
ard, and Zydu
goxin, among
fendants and
larly undergo
copyrrolate,
ficantly, rece
hase: Bloomb
of investigat
with sources
result of Def
nsumers and
ric drugs.
DOJ’s price-fix
www.fiercephar
ghlin & Caroli6), http://bloom St. J. (Nov. 3,-1478209036; Dut.rs/2fIIPn0.
d face liabilit
nes industry
J’s and CTA
eric manufac
us, concernin
g numerous o
d other gene
one significa
neostigmine
ent news rep
berg, The Wa
tion, DOJ is
s stating that
fendants’ sch
d third-party
xing investigatrma.com/pharm
ine Chen, U.S. m.bg/2fIr5rX; P, 2016), http://wDeena Beasley
- 5 -
ty of betwee
y-wide could
AG’s investig
cturers Actav
ng their sale
other drugs.
ric drug man
ant price incr
e methylsulf
ports have sta
Wall Street Jo
close to brin
t the charges
heme to fix,
y payors paid
tion could leadma/doj-s-price-
Charges in GePeter Loftus, etwww.wsj.com/y, Drug makers
en $380 milli
d exceed $1 b
gations, mem
vis, Apotex,
es of divalpro
Members o
nufacturers r
reases over t
fate, and ben
ated that inv
ournal, and R
nging crimin
s could be br
raise, mainta
d, and contin
d to sizable liab-fixing-investig
eneric-Drug Prt al., Generic-D/articles/generis under fire for
ion and $770
billion.4
mbers of Con
Impax, Lann
oex ER, prav
f Congress a
regarding oth
the past few
nazepril/
vestigations a
Reuters have
nal charges a
rought as ear
ain, and stab
nue to pay, su
bilities, analystgation-could-le
robe to Be FileDrug Firms Faic-drug-makersr possible price
0 million.
ngress have
nett, Mylan,
vastatin,
also requeste
her generic
w years, inclu
are on the cu
e all reported
against gener
rly as the en
bilize the pri
upracompeti
t says, FiercePhead-to-sizable-
e by Year-End,ace Possible s-shares-drop-oe fixing, Reuter
Par,
ed
uding
usp
d
ric
nd of
ices
itive
harma
,
on-rs
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 5 of 51
1
compose
purchase
ER, other
insureds,
including
“Class Pe
2
entities w
Maine, M
Carolina,
Virginia,
reimburs
consump
beneficia
anticomp
2
obtain inj
injuries t
violation
2
§§ 1331
Plain9.
d of all indiv
d, paid, and
r than for re
, participants
g the date tha
eriod”).
The se0.
who, in Alab
Michigan, M
, North Dako
, Wisconsin,
ement for so
ption by itsel
aries, from at
petitive effec
Plaint1.
junctive reli
hat Plaintiff
n of Section 1
This C2.
and 1337 an
tiff seeks to
viduals and e
provided re
sale, for con
s, or benefici
at the antico
econd class (
ama, Arizon
innesota, Mi
ota, Oregon,
and the Dis
ome or all of
lf, its familie
t least as ear
cts of Defend
J
tiff brings th
ief and costs
f and the othe
1 of the Sher
Court has sub
nd Section 16
certify two
entities in th
imbursemen
nsumption by
iaries, from
mpetitive ef
(the “Damag
na, Californi
ississippi, N
, Rhode Islan
strict of Colu
f the purchas
es, or its mem
rly as Octobe
dants’ unlaw
JURISDICT
is action und
of suit, inclu
er members
rman Act, 15
bject matter
6 of the Clay
- 6 -
classes. The
he United Sta
nt for some o
y itself, its fa
at least as ea
ffects of Def
ges Class”) i
a, Florida, H
Nebraska, Ne
nd, South Da
umbia, indire
se price for d
mbers, emplo
er 1, 2013 th
wful conduct
TION AND
der Section 1
uding attorn
of the Class
5 U.S.C. § 1
jurisdiction
yton Act, 15
e first class (t
ates or its ter
or all of the p
amilies, or it
arly as Octob
fendants’ unl
is composed
Hawaii, Iowa
evada, New M
akota, Tenne
ectly purcha
divalproex E
oyees, insure
hrough and in
ceased.
VENUE
16 of the Cla
neys’ fees, ag
s have suffer
.
over this ac
U.S.C. § 26
the “Injuncti
rritories who
purchase pri
ts members,
ber 1, 2013 t
lawful condu
d of all indivi
a, Kansas, M
Mexico, New
essee, Utah,
sed, paid, an
ER, other tha
eds, particip
ncluding the
ayton Act, 1
gainst Defen
red from Def
ction pursuan
6, because th
ive Class”) i
o indirectly
ce for divalp
employees,
through and
uct ceased (t
iduals and
Massachusett
w York, Nor
Vermont, W
nd provided
an for resale,
pants, or
e date that th
5 U.S.C. §26
ndants for the
fendants’
nt to 28 U.S.
his action ari
is
proex
d
the
s,
rth
West
, for
he
6, to
e
.C.
ses
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 6 of 51
under the
claims pu
2
because t
proposed
a state di
24
Section 1
were fou
commerc
2
intended
including
2
flow of in
substanti
2
interstate
A
2
benefits f
11590. L
whom liv
e federal anti
ursuant to 28
This C3.
this action is
d class excee
ifferent from
Venue4.
12 of the Cla
nd, or had ag
ce discussed
Defen5.
to, and did h
g in this Dist
Defen6.
nterstate com
ial, and reaso
Each D7.
e commerce
A. Plaint
Plaint8.
fund with its
Local 1500 pr
ve in New Y
itrust laws. T
8 U.S.C. § 13
Court also ha
s a class acti
eds $5,000,00
m that of one
e is proper in
ayton Act, 15
gents within
below was c
ndants’ cond
have a subst
trict.
ndants sold a
mmerce. The
onably fores
Defendant, o
to join or eff
tiff
tiff UFCW L
s principal pl
rovides near
York, among
This Court a
367(a).
as jurisdictio
on in which
00 and at lea
of Defendan
n this Distric
5 U.S.C. § 2
n this District
carried out i
duct, as descr
tantial effect
and shipped d
e conspiracy
eeable effec
or one or mo
ffectuate thei
THE
Local 1500 W
lace of busin
rly 23,000 m
other states.
- 7 -
also has supp
on over this m
the aggrega
ast one mem
nts.
ct under 28 U
2, because D
t, and a port
n this Distric
ribed in this
on, the inter
divalproex E
y in which D
t on interstat
ore of its affi
ir conspiracy
E PARTIES
Welfare Fund
ness at 425 M
members with
. During the
plemental jur
matter under
ate amount in
mber of the D
U.S.C. § 139
Defendants r
tion of the af
ct.
Complaint,
rstate comm
ER in a conti
efendants pa
te and intras
iliates, used
y.
S
d (“Local 15
Merrick Ave
h health and
Class Period
risdiction ov
r 28 U.S.C.
n controvers
Damages Cla
91(b), (c), an
resided, trans
ffected inters
was within t
merce of the U
inuous and u
articipated h
state comme
the instrume
500”) is an e
enue, Westbu
welfare ben
d, Local 150
ver state law
§ 1332(d)
sy for the
ass is a citize
nd (d) and
sacted busin
state trade an
the flow of,
United State
uninterrupted
had a direct,
rce.
entalities of
employee we
ury, New Yo
nefits, many
00 purchased
en of
ness,
nd
was
es,
d
elfare
ork,
of
d and
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 7 of 51
paid for s
and prop
Defendan
markets a
B
2
its princi
Reddy’s
place of b
5000034
Period, D
3
principal
technolog
manufact
Pharmac
3
business
3
principal
some or all t
erty. Local 1
nts’ anticom
and custome
B. Defen
1.
Defen9.
pal place of
is a subsidia
business loc
. Dr. Reddy’
Dr. Reddy’s
2.
Defen0.
l place of bus
gy-based spe
tured and so
euticals divi
3.
Defen1.
at 1000 Myl
Defen2.
l place of bus
the purchase
1500 paid an
mpetitive con
ers.
ndants
Dr. Reddy
ndant Dr. Re
business at
ary of Dr. Re
ated at 8-2-3
’s manufactu
sold generic
Impax
ndant Impax
siness at 308
ecialty pharm
ld generic d
ision.
Mylan De
ndant Mylan
lan Blvd., C
ndant Mylan
siness at 781
e price of div
nd reimburse
duct to fix, r
y’s
eddy’s Labo
107 College
eddy’s Labor
337, Road N
ures, market
c divalproex
Laboratorie
831 Huntwo
maceutical c
ivalproex ER
efendants
Inc. is a Pen
anonsburg, P
Pharmaceut
1 Chestnut R
- 8 -
valproex ER,
ed more for t
raise, mainta
ratories, Inc
e Road East,
ratories Ltd.
No. 3, Banjar
s, and sells v
ER in the U
es, Inc. (“Imp
od Avenue,
company. Du
R in the Unit
nnsylvania c
Pennsylvani
ticals Inc. is
Ridge Road,
, thereby suf
these produc
ain, and stab
c. (“Dr. Redd
Princeton, N
., an Indian c
ra Hills, Hyd
various gene
United States
pax”) is a D
Hayward, C
uring the Cla
ted States th
corporation w
ia, 15317.
a West Virg
Morgantown
ffering injury
cts than it wo
ilize the pric
dy’s”) is a c
New Jersey,
company wi
derabad Tela
eric drugs. D
.
Delaware cor
California, 94
ass Period, Im
hrough its Gl
with its princ
ginia corpora
n, West Virg
y to its busin
ould have ab
ces and alloc
corporation w
08540. Dr.
ith its princip
angana, India
During the Cl
rporation wit
4544. Impax
mpax
lobal
cipal place o
ation with it
ginia 26505.
ness
bsent
cate
with
pal
a,
lass
th its
x is a
of
s
.
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 8 of 51
3
to as “My
products
United S
34
place of b
3
principal
3
collective
products
billion. T
divalproe
3
corporati
08534. Z
company
During th
States.
3
collective
Defen3.
ylan.” Myla
in the Unite
tates.
4.
Defen4.
business at O
Defen5.
l place of bus
Defen6.
ely referred
in the Unite
The merger w
ex ER in the
5.
Defen7.
ion with its p
Zydus is a sub
y. Zydus man
he Class Per
Defen8.
ely as “Defe
ndants Mylan
an manufactu
ed States. Du
Par Defen
ndant Par Ph
One Ram Ri
ndant Par Ph
siness at On
ndants Par Ph
to as “Par.”
ed States. In
was complete
United Stat
Zydus
ndant Zydus
principal pla
bsidiary of Z
nufactures, m
riod, Zydus m
ndants Dr. Re
endants.”
n Inc. and M
ures, market
uring the Cla
ndants
armaceutica
dge Road, C
armaceutica
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tes.
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manufacture
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- 9 -
Mylan Pharm
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ass Period, M
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the branded
n-AB rated g
onsiderations
- 13 -
ancing attribu
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ufacturers ha
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New Drug A
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scientific an
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Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 13 of 51
physician
inures to
4
easier for
market.
5
ER is der
used as m
A
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name De
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ER was a
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n and whethe
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In sum9.
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f divalproex
n the market
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macistsletter.th&AspxAutoDe
er the switch
al benefit of
m, the stream
ug manufactu
TUAL BACK
proex ER is
valproate, wh
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val of Depak
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ric Manufac
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herapeuticreseaetectCookieSup
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ott Laborator
AbbVie, gene
cturers of D
nufacturers th
an, Par, Dr. R
Dr. Reddy’s,
ylan received
arch.com/pl/Arpport=1.
- 14 -
iate in a phar
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oval process
ng competing
D REGARD
to treat mig
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valproex ER
ls a branded
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September 3
ries began se
erating over
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hat currently
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rticleDD.aspx?
rmacist’s pro
rty payors.
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nce the late 1
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d version of d
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elling the dru
$900 million
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neric version
ylan and Par
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udgment.10 T
an Act make
roducts to
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ts. Divalproe
and has bee
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Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 14 of 51
ap
d
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5
divalproe
prices of
complain
bottle co
compared
$1,100 a
54
market. M
11 Phi
23, 2015), 12 Rob
http://link.13 Id.
pproval to m
ivalproex ER
ER in May 20
ER in Februa
A. DefenDival
As pa3.
ex ER sold to
f divalproex E
ned that whil
st $1,629.95
d it to “going
gallon.”13
Drug 4.
Mylan and P
ilip Moeller, Hhttp://www.pb
b Low, Rising fox4kc.com/13
(b) Par
market generi
(c) Dr
R in March 2
(d) Im
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rt of their co
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s in the Unit
en seven-fol
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2013.12 So s
pump at fou
ysts have no
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generic drugs s
- 15 -
sor-in-intere
of divalproex
eceived appro
d approval to
d approval to
TS’ WRON
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efendants ag
ed States. Be
d from $31 t
valproex ER
steep was the
ur dollars a g
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ant players in
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set to shock con
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x ER in Mar
oval to mark
o market gen
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R cost $122.9
e price incre
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n the divalpr
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nsumers, FOX4
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ket generic v
neric version
neric version
d Stabilize t
e the prices
ober 2013 an
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99 in May 2
ase that one
ay and the ne
is a “low com
roex ER mar
care?, PBS NEugs/.
4 (Aug. 14, 20
icals, receive
versions of
ns of divalpr
ns of divalpr
the Prices of
of generic
nd April 201
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pharmacist
ext day it’s
mpetition”
rket, and tog
EWSHOUR (A
013),
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roex
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4,
cy
me
gether
Apr.
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 15 of 51
have wel
significan
5
divalproe
as well a
including
by them,
prices wh
5
prices of
report fou
5
Demand
divalproe
material
5
subject to
analyzed
below sh
and July
14 Mo
ll over 50% o
nt shares of
Trade5.
ex ER manu
s allocate m
g Dr. Reddy’
as well as a
henever Dr.
Defen6.
f divalproex E
und that “co
Defen7.
for divalpro
ex ER prices
shortages th
Plaint8.
o a non-discl
d shows that
hows the ave
2015:
organ Stanley,
of the divalp
the generic d
association
facturers wit
arkets. Myla
’s, Impax, an
allocate mark
Reddy’s, Im
ndants’ consp
ER in the Un
ompanies hav
ndants’ dival
oex ER has n
s rose in or a
hat would hav
tiff analyzed
losure agree
the price hik
rage price pe
Specialty Phar
proex ER ma
divalproex E
meetings, in
th the oppor
an and Par m
nd Zydus, an
kets. As a res
mpax, and Zy
piracy enabl
nited States.
ve been raisi
lproex ER pr
not materially
around the la
ve constrain
d several sour
ement), inclu
kes for divalp
er unit (table
rmaceuticals R
- 16 -
arket. Dr. Re
ER market.
ncluding tho
rtunity to me
met with their
nd agreed to
sult of the ag
ydus raised th
led them to r
Indeed, a Ja
ing prices on
ricing canno
y changed b
ast quarter of
ned Defendan
rces of data
uding CMS’s
proex ER we
et) of generi
Rx Trends in Pic
eddy’s, Impa
ose sponsore
eet and agree
r fellow diva
raise the pri
greement, M
heirs—and v
raise and ma
anuary 2014
n divalproex
ot be explain
etween 2010
f 2013, there
nts’ ability to
for divalpro
s NADAC d
ere generally
c divalproex
ctures, Jan. 27
ax, and Zydu
d by GPhA,
e to fix dival
alproex ER p
ices of dival
Mylan and Pa
vice versa.
aintain supra
4 Morgan Sta
x . . . aggress
ed by norma
0 and the pre
e were no kn
o supply the
oex ER (som
data. The dat
y industry-w
x ER betwee
, 2014
us also have
provided
lproex ER pr
producers,
lproex ER so
ar raised thei
acompetitive
anley analys
ively.”14
al market for
esent. At the
nown raw
e market.
me of which i
a Plaintiff
wide. The ch
en October 2
rices,
old
ir
st
rces.
e time
is
art
012
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 16 of 51
5
over 920
per tablet
6
divalproe
Cummin
250 mg,
500 mg,
500 mg,
500 mg,
6
substanti
deprived
The N9.
%, from an a
t as of Septe
Simila0.
ex ER 250 m
gs in their le
100 units
100 units
300 units
80 units
Furthe1.
ially above th
, and continu
NADAC data
average mar
ember 19, 20
arly staggeri
mg and 500 m
etters to diva
er, although
heir pre-Sep
ues to depriv
a show that p
rket price of
013.
ing prices in
mg tablets, a
alproex ER p
$30
$43
$145
$31
divalproex E
ptember 2013
ve, Plaintiff
- 17 -
prices for ge
$0.31 per ta
creases were
as noted by S
producers.
ER prices ha
3 prices. Def
and member
eneric divalp
ablet as of Se
e found for d
Senator Sand
$179
$351
$880
$235
ave eroded s
fendants’ co
rs of the Cla
proex ER 500
eptember 12
different pac
ders and Rep
somewhat, th
oordinated pr
asses the ben
0 mg increas
2, 2013 to $3
ckage sizes o
presentative
566%
667%
570%
736%
hey still rem
ricing has
nefits of free
sed
3.18
of
ain
and
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 17 of 51
open com
Plaintiff
generic d
B
6
market.
6
raise, ma
ER. The
from cap
64
numerou
in
d
an
E
co
co
mpetition—n
and member
divalproex E
B. Defenand M
There2.
Rathe3.
aintain, and s
price increa
ptive drug pu
In form4.
us anticompe
n the United
ivalproex ER
nd otherwise
ER sold to pu
ollusive and
ollusive and
namely, lowe
rs of the Cla
ER.
ndants’ ConMarkets for
are no mark
r, Defendant
stabilize the
ses were the
urchasers.
mulating and
etitive activit
(a) Att
States by te
R;
(b) Ag
e fix, increas
urchasers in t
(c) Sel
d non-compet
(d) Ac
d non-compet
er prices for
asses have pa
nspiratorial Generic Di
ket-based rea
ts sustained
prices of, an
e product of D
d effectuatin
ties, includin
tending joint
lephone, fac
greeing to ch
se, maintain,
the United S
lling divalpr
titive prices
ccepting paym
titive prices;
- 18 -
generic vers
aid and conti
Conduct toivalproex ER
asons for the
these suprac
nd allocate m
Defendants’
ng their cons
ng, among ot
t meetings o
csimile, and
harge prices f
, and stabiliz
States;
roex ER to c
pursuant to
ments for di
;
sions of diva
inue to pay n
o Fix PricesR
e pricing pat
competitive
markets and c
’ shared desi
spiracy, Defe
ther things:
or otherwise
electronic m
for divalproe
ze the prices
ustomers in
the agreeme
ivalproex ER
alproex ER.
non-competi
and Allocat
tterns in the
profits by co
customers fo
ire to extract
endants enga
engaging in
mail regardin
ex ER at spe
and supply
the United S
ent reached;
R sold in the
As a result,
itive prices f
te Custome
divalproex E
onspiring to
or divalproex
t monopoly r
aged in
n joint discus
ng the sale of
ecified levels
of divalproe
States at
United Stat
for
rs
ER
fix,
x
rents
ssions
f
s,
ex
tes at
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 18 of 51
m
U
co
v
6
commun
maintain
6
members
prices for
present.
GENER
A
6
conduciv
market ex
commod
competit
markets, supp
United States
onspiracy; a
arious mean
The p5.
ications was
an unlawful
As a r6.
s of the Clas
r divalproex
RIC MARKE
A. FactoMark
The st7.
ve to collusio
xhibited: (1)
itization; (4)
ors acting ag
(e) Co
ply and manu
s;
(f) Au
nd
(g) Co
ns.
urpose of th
s to ensure th
l price-fixing
result of Def
ses were inju
x ER sold in t
ET FOR DI
ors Supportiket
tructure and
on and price-
) high barrier
) a high degr
gainst their e
ommunicatin
ufacturing is
uthorizing or
oncealing the
ese secret, c
hat all Defen
g and marke
fendants’ unl
ured because
the United S
IVALPROECON
ing the Exis
other charac
-fixing. Spec
rs to entry; (
ree of concen
economic sel
- 19 -
ng with one a
ssues, and pr
r consenting
e conspiracy
conspiratoria
ndants agreed
et and custom
lawful agree
e they paid,
States during
EX ER IS SUNSPIRACY
stence of a C
cteristics of t
cifically, dur
(2) inelastici
ntration; (5)
lf-interest; a
another to di
rice levels of
to the partic
y and conspir
al meetings, d
d to particip
mer allocatio
ement to rest
and continue
g the period O
USCEPTIBY
Conspiracy
the divalpro
ring the Clas
ity of deman
substantial
and (7) oppor
iscuss the pr
f divalproex
cipation of em
ratorial conta
discussions,
ate in, imple
on scheme.
train trade, P
e to pay, sup
October 1, 2
BLE TO A P
in the Diva
oex ER mark
ss Period, th
nd; (3) a high
manufacture
rtunities to c
rices, custom
x ER sold in
mployees in
acts through
and
ement, and
Plaintiff and
pracompetiti
2013 through
PRICE FIX
lproex ER
ket and make
he divalproex
h degree of
er overlap; (6
conspire.
mers,
the
n the
h
ive
h the
e it
x ER
6)
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 19 of 51
6
would, un
competit
much les
maintena
6
7
and the c
generic d
receive F
7
bioequiv
productio
million.15
increase
7
Ingredien
products
7
and guida
15 Tes
20, 2014),
1.
A coll8.
nder basic e
ive pricing.
ss likely to en
ance of a car
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valence and
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- 20 -
riers to Entr
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Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 20 of 51
requires
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divalproex ER
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equirements
FDA delayin
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Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 21 of 51
7
which the
7
anticonvu
divalproe
pharmaco
a result, t
substitute
8
Although
divalproe
8
divalproe
over thei
8
captive to
allocate m
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a commo
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ulsants are n
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r generic cou
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proex ER is
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proex ER at t
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is because b
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ompetitive p
customers.
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n products ar
mpete on pric
e becomes a
duct have an
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proex ER is
stitute.
used to treat
le substitute
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ompared to
t considered
the pharmac
ubclass of va
such as valpr
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ex ER does n
branded prod
making them
of generic di
prices that re
ex ER Is a C
re subject to
ce, as oppos
significant f
easier time
much easier
- 22 -
highly inela
t migraines a
s because of
r example, g
valproate, fr
d therapeutic
cy level.
alproate deri
roic acid, ha
ent to divalpr
not serve as
ducts general
m inapt substi
ivalproex ER
esulted from
Commodity
commoditiz
ed to other f
factor in driv
colluding on
r to impleme
astic because
and seizures
f the therape
gabapentin a
rom which d
ally equivale
ivatives, div
ave similar th
roex ER.
an economi
lly maintain
itutes even w
R have been
Defendants
Product
zation, produ
factors, such
ving demand
n price than
ent and moni
e it is a uniqu
s in adults. O
eutic differen
and topirama
divalproex E
ent and wou
valproex ER
herapeutic p
ic substitute
substantial p
when generic
n and continu
’ conspiracy
ucers of thos
h as quality a
d for a produ
other non-pr
itor.
ue product f
Other
nces between
ate have diffe
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uld not be
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roperties to
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se products a
and ancillary
uct, producer
rice factors
for
n
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t.
ums
r.
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s and
are
y
rs of
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 22 of 51
84
products
FDA, wh
bioequiv
generic f
rated gen
also be ab
8
version, e
their resp
8
or detaili
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product f
price can
8
practices
8
of compa
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manufact
18 See
Brief (Dec
Gener4.
because the
hen approvin
alent to the b
for its brande
neric for the
ble to substi
Defen5.
enabling pha
pective state
Moreo6.
ing their gen
ples to physi
from another
n drive produ
4.
A con7.
.
The d8.
anies: Mylan
The li9.
turers’ abilit
e Congressiona. 2, 2009), at 1
ric drugs of t
primary me
ng an ANDA
brand’s NDA
ed counterpa
same brande
itute non-AB
ndants’ dival
armacists to
’s generic su
over, becaus
neric compou
icians), the p
r generic com
ucers of com
The Gene
ncentrated m
divalproex ER
n, Par, Dr. R
imited numb
ty to coordin
al Budget Offic.
the same che
echanism thr
A, is required
A, an AB-rat
art, as well a
ed product. (
B rated drugs
lproex ER pr
substitute th
ubstitution la
se generic m
unds (i.e., the
primary mea
mpetitor’s is
mmodity prod
eric Divalpr
market is mor
R market is h
eddy’s, Imp
ber of divalpr
nate pricing f
ce, Promotiona
- 23 -
emical comp
rough which
d to determin
ting permits
s to substitu
(Depending
s, provided t
roducts are A
hem for the b
aws.
anufacturers
e practice of
ans for one g
s through pri
ducts to cons
oex ER Ma
re susceptibl
highly conce
ax, and Zydu
roex ER man
for divalproe
al Spending for
position are e
h they compe
ne whether a
a pharmacis
ute one AB-r
on a given s
that certain c
AB-rated gen
branded vers
s generally s
f providing p
generic manu
ice reduction
spire—as the
arket Is High
e to collusio
entrated and
dus.
nufacturers f
ex ER. This
r Prescription D
effectively c
ete is price. B
a generic dru
st to substitu
rated generic
state’s law, a
conditions ar
nerics of the
sion automat
spend little e
promotional
ufacturer to d
ns.18 The nee
ey did here—
hly Concent
on and other
d is dominate
facilitated th
concentratio
Drugs, Econom
commodity
Because the
ug product is
ute an AB-ra
c for another
a pharmacist
re met.)
eir branded
tically under
ffort adverti
materials an
differentiate
ed to compet
—to fix price
trated
anticompeti
ed by a hand
hose
on also made
mic & Budget I
s
ated
r AB-
t may
r
ising
nd
its
te on
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itive
dful
e it
Issues
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 23 of 51
easy for t
upon pric
9
fix, raise
generic d
9
products
generic m
productio
manufact
criminal
Doxycycl
for the E
them to mon
ces.
As the0.
, and mainta
drug manufa
5.
The d1.
and thus, ha
manufacturer
on and sales
turers also m
investigation
line Antitrus
astern Distri
GenericCompa
nitor prices in
e dominant p
ain their pric
cturers.
Manufact
dominant man
ave overlapp
rs. This prod
of these ove
make digoxin
n and numer
st Litigation
ict of Pennsy
c ny
Dig
n the downs
players in th
es for divalp
turers of Ge
nufacturers
ping product
duct overlap
erlapping pro
n and doxycy
rous civil cla
now pendin
ylvania, as w
goxin Do
- 24 -
stream marke
e divalproex
proex ER w
eneric Dival
of generic di
portfolios w
incentivizes
oducts. For e
ycline, two d
ass actions in
g before Jud
well as other
oxycycline DE
et and police
x ER market
without comp
lproex ER H
divalproex al
with other no
s these manu
example, ma
drugs that ar
n In re Gene
dge Cynthia
generic drug
Divalproex ER
e deviations
t, Defendants
petitive threa
Have Overla
so make sev
on-divalproe
ufacturers to
any divalpro
re the subjec
eric Digoxin
Rufe in the
gs:
Pravastat
from agreed
s were able t
ats from rival
apping Prod
veral other dr
x producing
coordinate
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ts of both a D
and
District Cou
tin
d-
to
l
ducts
rug
g
DOJ
urt
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 24 of 51
:
9
incentive
9
price thei
with the u
price, tak
aggressiv
94
competit
Actavis
Apotex
Dr. Red
Impax
Glenm
Lannet
Lupin
Mayne
Mylan
Par
Sun
Teva
West-W
Zydus
This p2.
e to conspire
6.
Comp3.
ir products a
understandin
king sales—a
vely.
Here, 4.
ors. Rather t
s
x
ddy’s
ark
tt
Ward
product over
e to fix prices
Defendan
petitive firms
aggressively
ng that if the
and ultimate
however, D
than attempt
rlap provided
s and allocat
nts’ Pricing A
s in a compe
, relative to t
ey do not do
ely market sh
efendants fa
t to take sale
- 25 -
d these manu
te sales of th
Actions We
etitive, comm
their compet
so, other co
hare—away
ailed to price
s, revenue, a
ufacturers w
hese product
ere Against
moditized ma
titors’ produ
ompetitors un
from the firm
e aggressivel
and market s
with the oppo
s.
Their Self-I
arketplace w
ucts. Firms p
ndercut their
ms that are p
ly relative to
share away f
ortunity and
Interest
will typically
price aggress
r relatively h
pricing less
o their
from one ano
y
sively
high
other,
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 25 of 51
Defendan
supracom
9
to gain sa
gains in f
from com
competin
9
its memb
9
their con
associatio
of generi
9
Impax, M
derives th
(2) produ
9
Directors
Bresch, P
Chairper
nts instead s
mpetitive pric
Such c5.
ales, revenue
favor of cart
mpetitors sug
ng on price.
7.
In ord6.
bers to ensur
Defen7.
spiratorial c
on is the Gen
ic pharmaceu
Curren8.
Mylan, Par, a
he majority o
ucts sold as a
Sever9.
s, including:
Par’s Tony P
son.
ought to me
ces from Pla
conduct was
es, and mark
tel pricing. D
ggests that D
MembersWith Opp
der to be sust
re that all are
ndants were
ommunicati
neric Pharm
utical manuf
nt “Regular
and Zydus. R
of its revenu
authorized g
al of Defend
Dr. Reddy’
Pera, and Zyd
et the price i
aintiff and m
s against Def
ket share, De
Defendants’ f
Defendants w
hips in the Sportunities t
tained, consp
e adhering to
members of
ons and imp
maceutical As
facturers.
Members” o
Regular Mem
ues from sale
eneric drugs
dants’ high-r
s Alok Sonig
dus’ Joseph
- 26 -
increases ma
members of th
fendants’ sel
efendants ins
failure to cut
were conspiri
Same Tradeto Conspire
piracies requ
o the collecti
f trade assoc
plement their
ssociation (“
of the GPhA
mbers are ent
es of (1) fini
s; (3) biosim
ranking offic
g, Impax’s M
Renner. Ms
ade by other
he Classes.
lf-interest be
stead sought
ut prices in th
ing to fix an
e Associatioe
uire periodic
ive scheme.
ciations, whi
r price-fixing
“GPhA”), wh
A include Def
tities whose
ished dose dr
milar product
cers also serv
Marcy Macd
s. Bresch serv
rs and extrac
ecause rather
t to sacrifice
he face of pr
nd raise price
ons Provide
c communica
ch they used
g scheme. O
hich is the la
fendants Dr.
primary U.S
rugs approve
s; or (4) DE
ve on GPhA
donald, Myla
rves as the G
ct
r than cut pr
these potent
rice increases
es, rather tha
d Defendan
ations betwe
d to facilitate
One such trad
argest associ
. Reddy’s,
S. business
ed via AND
SI products.
A’s Board of
an’s Heather
GPhA’s curre
rices
tial
s
an
nts
een
e
de
iation
As;
r
ent
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 26 of 51
1
table lists
manufact
2012 GP
2012 GPConferen
2013 GP
2013 GP
2013 GPConferen
2014 GP
2014 GP
1
Defendan
2013, as
30th AnnuHealthca
31st AnnuHealthca
Repre00.
s some of th
turers attend
Meeting
hA Annual M
hA Fall Tecnce
hA Annual M
hA CMC W
hA Fall Tecnce
hA Annual M
hA CMC W
Defen01.
nts’ represen
did represen
Meeting
ual JP Morgare Conferen
ual JP Morgare Conferen
esentatives fr
e GPhA mee
ded as well):
Meeting
hnical
Meeting
Workshop
hnical
Meeting
Workshop
ndants also ro
ntatives atten
ntatives of ot
gan ce
an ce
rom Defenda
etings attend
Meeting D
February 22Orlando, Fl
October 1-3Bethesda, M
February 20Orlando, Fl
June 4-5, 20Maryland
October 28-Bethesda, M
February 19Orlando, Fl
June 3-4, 20
outinely gath
nded the ann
ther generic
Meeting D
January 201San Francis
January 7-1San Francis
- 27 -
ants attended
ded by Defen
Date and Lo
2-24, 2012, lorida
3, 2012, Maryland
0-22, 2013, lorida
013, Bethesd
-30, 2013, Maryland
9-21, 2014, lorida
014
hered at non
nual JP Morg
drug manufa
Date and Lo
12, sco, Californ
10, 2013, sco, Californ
d meetings h
ndants’ emp
ocation
M
ImPa
ImRe
da, DrZy
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n-GPhA spon
gan Healthca
facturers:
ocation
nia
Im
nia
Im
held by GPhA
loyees (othe
Att
Mylan, Par
mpax, Mylanar, Zydus
mpax, Mylaneddy’s, Zydu
r. Reddy’s, Iydus
mpax, Mylaneddy’s, Zydu
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r. Reddy’s, Iydus
nsored event
are Conferen
Att
mpax, Mylan
mpax, Mylan
A. The follo
er generic dru
endees
n, Dr. Reddy
n, Par, Dr. us
Impax, Par,
n, Par, Dr. us
n, Par, Dr. us
Impax, Par,
ts. For exam
nces in 2012
endees
n, Par
n, Par
owing
ug
y’s,
mple,
and
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 27 of 51
1
focusing
used by D
scheme.
1
anticomp
other dru
A
1
certain ge
driving th
Member
Sanders,
Health, E
informati
medical c
1
Mylan, P
Pharmac
pricing o
albuterol
19 Ran
Drugs, http
Thus, 02.
on trade ass
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Upon 03.
petitive schem
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GOVERNM
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As ne04.
eneric drugs
hese price hi
of the Hous
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ion about the
conditions to
These05.
Par, Teva, an
euticals Inc.
of many gene
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nking Memberp://www.sande
it is not surp
sociations, in
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me to raise,
w to allocate
MENT INVE
ressional In
ws reports h
s, members o
ikes. On Oct
e Committee
of the Subcom
Labor and Pen
e escalating
o life-threate
e letters were
nd Zydus, am
, and Marath
eric drugs, in
copyrrolate,
rs Cummings aers.senate.gov/d
prising that,
ncluding GPh
entatives to
n and belief,
maintain, an
markets and
ESTIGATI
nvestigation
have prolifer
of Congress
tober 2, 2014
e on Oversig
mmittee on P
nsions, “sen
prices of gen
ening illness
e delivered to
mong others—
hon Pharmac
ncluding div
neostigmine
and Chairman Sdownload/face
- 28 -
according to
hA, because
coordinate a
Defendants’
nd stabilize t
d customers,
IONS INTO
s into Gene
ated with res
have expres
4, Represent
ght and Gove
Primary Hea
nt letters to 1
neric drugs u
es.”19
o the heads o
—including E
ceuticals, LL
valproex ER,
e methylsulf
Sanders Invest-sheet-on-gene
o public repo
e these trade
and impleme
’ employees
the prices of
at these mee
O GENERIC
eric Drug Pr
spect to the
sed a growin
tative Elijah
ernment Ref
alth and Agin
4 drug manu
used to treat
of Actavis, A
Endo Pharm
LC—seeking
pravastatin,
fate, benazep
tigate Staggerineric-drug-price
orts, DOJ’s c
associations
ent their anti
discussed th
f divalproex
etings, amon
C DRUG PR
ricing
dramatic ris
ng concern a
E. Cummin
form, and Se
ng, Senate C
ufacturers re
t everything
Apotex, Dr.
maceuticals p
g informatio
, digoxin, do
pril/hydroch
ng Price Increae-increases?inli
criminal pro
s may have b
icompetitive
heir
ER, as well
ng others.
RICING
e in price of
as to what is
ngs, the Rank
enator Berna
Committee o
equesting
from comm
Reddy’s, Im
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obe is
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mpax,
e
,
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Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 28 of 51
Isuprel®
Defendan
divalproe
1
1
connectio
experienc
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http://www(citing Letthttps://ww
(isoproteren
nts received
ex ER:
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This dfor paAssocacrossare hupharmlarge uhave amedicdeclinpharmhavingcontin
Furthe07.
on with their
ced over the
e, e.g., Ltr. fromw.sanders.senatter from B. Dow.ncpanet.org/
nol hydrochl
letters from
D
M
P
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letter stated:
dramatic incratients. Accociation (NCPs the countryurting patientmacists reporupswing in aa direct impacations. The ning their memacists said tg a ‘very signue serving p
er, Senator S
r letters, dem
past several
m Sen. Bernardte.gov/downloa
ouglas Hoey to /pdf/leg/jan14/
loride), and N
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GENERIC
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Mylan
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Zydus
:
rease in geneording to the PA), a 2013 my “have seents[’] and pha
rted 26 or moa generic druact on patienNCPA surve
edication duethat the acqugnificant’ impatients.”20
Sanders and
monstrating t
l years:
d Sanders & Rad/letter-to-mrSen. Tom Har
/letter-generic-
- 29 -
Nitropress®
nders and Re
MANUFACT
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ep. Elijah E. C-bedrosian-prerkin, et al. (Janspikes.pdf)).
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ices results iommunity ofvey found things in generability to opes over the pation price.” To purchase that “pharmacied co-pays,” e/lagging reimr ability to re
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Cummings to Aesident-and-ceon. 8, 2014),
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in decreased f Pharmacisthat pharmaciric drug pricerate” and “ast six monthThese price heir needed ists reportedand “84% ombursementemain in bus
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Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 29 of 51
1
Senator S
Departm
immediat
1
Novembe
Pharmac
reduced c
the overa
1
prices we
on Aging
Service o
patient ac
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21 Co
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er 20, 2014.
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ere held in D
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way, this ca
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.”22
ngressional Pa
w.sanders.senat
atement of ErinDrugs: Perspe
w.aging.senate.
dition to send
Representat
h and Huma
gressively to
Senate Subco
Although th
re scheduled
across vario
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December 20
er 9, 2015 he
rsity of Utah
ealthcare, sta
an create an
the same am
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n R. Fox, Pharmectives from thgov/imo/media
ding letters t
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ressional hea
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earing, Erin D
h, noted the d
ating, “When
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- 30 -
to the generi
ngs wrote a j
Secretary, sta
increasing c
Primary He
s and CEOs
e hearing, no
drugs has con
arings concer
ruary 2016. A
D. Fox, Phar
deleterious e
n medication
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o price increa
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ic drug manu
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on Service, He), at 7,
df.
ufacturers lis
o Sylvia Bur
federal gove
e drugs.”21
ing held a he
Teva, and M
d. Many pan
the price hik
amatic rise o
Senate Spec
or of the Dru
drug prices h
ease in an un
nts. If hospita
fectively crea
robe-generic-d
earing on “Sud
sted above,
rwell, the
ernment mus
earing on
Marathon
nelists agreed
kes observed
of generic dr
ial Committ
ug Informati
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tee
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and
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es.
kes in
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 30 of 51
1
Daniel R
imploring
drugs and
and Med
Sanders a
previous
B
1
enforcem
manufact
generic d
1
generic d
sweeping
companie
agencies,
could be
1
of Pennsy
23 Let
http://www24 Let
http://www
On Fe11.
R. Levinson,
g the departm
d the effect t
dicaid progra
and Represe
review of ge
B. FederPricin
Gener12.
ment authorit
turers have r
drugs, as wel
Initial13.
drugs: digoxi
g nature of th
es are under
, the DOJ’s i
filed by the
A fede14.
ylvania. The
tter from Hon.
w.sanders.senat
tter from Hon. w.sanders.senat
ebruary 24, 2
the Inspecto
ment to “exa
these price in
ams.”23 On A
ntative Cum
eneric drug p
ral and Statng
ric pricing pa
ties in the Un
received sub
ll as their co
l reports sug
in and doxyc
he DOJ’s inv
criminal inv
investigation
end of 2016
eral grand ju
e result of th
Bernard Sande
te.gov/downloa
Daniel Levinste.gov/downloa
2015, Senato
or General of
amine recent
ncreases hav
April 13, 201
mmings’s lett
price increas
te Antitrust
atterns have
nited States.
bpoenas or re
mmunicatio
gest that, at
cycline. How
vestigation:
vestigation. I
n has progre
6.
ury investiga
ese investiga
ers and Elijah Cad/sanders-cum
son to Hon. Berad/oig-letter-to
- 31 -
or Sanders an
f the Departm
t increases in
ve had on ge
5, Inspector
ter, stating th
ses under the
Investigatio
also capture
Many Defen
equests for in
ns with their
the beginnin
wever, recen
at least two-
Indeed, acco
ssed to such
ating the mat
ations could
Cummings to Hmmings-letter?
rnard Sanders o-sen-sanders-4
nd Represen
ment of Hea
n the prices b
eneric drug s
r General Le
hat his office
e Medicaid d
ons into Def
ed the attenti
ndants and o
nformation c
r competitor
ng, the probe
nt news repor
-dozen drugs
ording to Blo
h a degree tha
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d result in the
Hon. Daniel Leinline=file.
(Apr. 13, 20154-13-2015?inli
ntative Cumm
alth and Hum
being charge
spending wit
evinson respo
e planned “to
drug rebate p
fendants’ G
ion of federa
other generic
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rs for those d
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s and a doze
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at the first cr
neled in the
e imposition
evinson (Feb. 2
5), ine=file.
mings wrote
man Services
ed for generi
thin the Med
onded to Sen
o update our
program.”24
Generic Dru
al and state
c drug
their pricing
drugs.
used on two
nfirmed the
n drug
d other news
riminal char
Eastern Dist
n of substanti
24, 2015),
to
s,
ic
dicare
nator
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of
s
rges
trict
ial
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 31 of 51
fines and
analysts h
1
state anti
1
subpoena
a contrac
(i) fixing
or territo
1
identifica
ministeri
productio
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commerc
policy di
25 Eri
FiercePharto-sizable-
26 Imphttp://wwwut+AG/966http://finan
d criminal ple
have estimat
To da15.
itrust probes
Lanne16.
as from the C
ct, combinati
g, maintainin
ries relating
The in17.
ation of “all
ial responsib
on of “all do
ther company
rategic plans
cialization of
rected to the
ic Saonowsky, rma (Nov. 10, 2liabilities-analy
pax Laboratoriw.streetinsider.62945.html; Lance.yahoo.com
eas for gene
ted that the D
te, the gener
include:
ett. In July 2
CTAG in con
ion or consp
ng or controll
to the sale o
nformation a
persons at L
bility related
ocuments or c
y, to increas
s or any othe
f Digoxin”; a
e antitrust law
DOJ’s price-fi2016), http://wyst-says.
ies (IPXL) Reccom/Corporateannett Receive
m/news/lannett-r
ric manufact
DOJ could im
ric drug com
2014, Lannet
nnection wit
iracy in restr
ling prices o
of digoxin in
and documen
Lannett with
to the pricin
communicat
e the price o
er documents
and (4) the i
ws.”
fixing investigawww.fiercephar
ceives Subpoene+News/Impax Inquiry from Creceives-inquir
- 32 -
turers, and j
mpose fines
mpanies conta
tt revealed in
th its investi
raint of trade
of digoxin or
n violation of
nts sought by
any supervi
ng or sale of
tions referrin
of Digoxin”;
s relating to
identification
ation could leadrma.com/pharm
na from Connex+LaboratoriesConnecticut Ary-connecticut
ail time for c
in excess of
acted in con
n SEC filing
igation into w
e or commer
r (ii) allocati
f Connecticu
y the CTAG
isory, execut
f Digoxin”; (
ng or relating
(3) the prod
the developm
n and produc
d to sizable liama/doj-s-price-
ecticut AG, s+(IPXL)+Rec
Attorney Generat-attorney-1533
company ex
f $1 billion.2
nnection with
gs that they h
whether “any
rce which ha
ing and divid
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tive or other
2) the identi
g to any dec
duction of “[
ment, manuf
ction of “wri
abilities, analys-fixing-investig
eives+Subpoenal, 300612.html.
xecutives. So
25
h both federa
had received
yone engage
as the effect
ding custome
aw.”26
1) the
significant n
ification and
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st says, gation-could-le
na+from+Conn
ome
al or
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ng
ance
ead-
nectic
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 32 of 51
1
a senior s
federal in
1
“grand ju
pharmace
that the “
financial
regarding
certain pr
requested
issued.
1
an emplo
supplied
1
concernin
allocate c
federal g
27 Ed
10, 2014). 28 Lan
http://www29 Id. 30 Lan
https://ww
Five m18.
sales and ma
nvestigation
On De19.
ury subpoena
eutical indus
“subpoena re
, and employ
g the sale of
roducts.”29 I
d informatio
Most 20.
oyee of the C
to the [DOJ
Impax21.
ng Impax’s s
customers or
rand jury su
Silverman, Ju
nnett SEC Formw.sec.gov/Arch
nnett SEC Formw.sec.gov/Arc
months later,
arketing exec
of the gener
ecember 5, 2
a related to t
stry into pos
equests corpo
yee informat
generic pres
In a 2015 SE
n and docum
recently, in
Company in
].”30
x. In July 20
sales of gene
r territories.
bpoena requ
stice Departme
m 8-K (Dec. 5,hives/edgar/dat
m 10-Q (Nov. chives/edgar/da
, on Novemb
cutive was s
ric industry i
2014, Lannet
the continuin
sible violatio
orate docum
tion, commu
scription me
EC filing, La
ments for the
June 2016, t
order to gain
014, Impax d
eric digoxin
In Novembe
uesting testim
ent Probes Gen
, 2014), ta/57725/00011
4, 2016), ata/57725/0001
- 33 -
ber 10, 2014
erved with a
into possible
tt disclosed
ng federal in
ons of the Sh
ments from th
unications or
edications, an
annett further
e period 2005
the CTAG “i
n access to d
disclosed tha
and whether
er 2014, Imp
mony and do
neric Compani
104659140854
110465916154
4, Lannett di
a DOJ grand
e violations o
in a Form 8-
nvestigation o
herman Act.
he Company
r correspond
nd the marke
r disclosed th
5 through th
issued interr
documents an
at it received
r it agreed w
pax disclosed
ocuments abo
ies After Price
406/a14-25827_
924/a16-19144
sclosed in an
d jury subpoe
of anti-trust
-K that it rec
of the gener
.”28 Lannett
y relating to c
dence with co
eting, sale, o
that the feder
he dates the s
rogatories an
nd responses
d a subpoena
with others to
d that it also
out “any com
Hike Reports,
_18k.htm.
4_110q.htm.
n SEC filing
ena “relating
laws.”27
ceived anoth
ic
further discl
corporate,
ompetitors
or pricing of
ral subpoena
subpoenas w
nd a subpoen
s previously
a from the CT
o fix prices o
o received a
mmunication
Wall. St. J. (N
g that
g to a
her
losed
f
as
were
na to
y
TAG
or
n or
Nov.
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 33 of 51
correspon
subpoena
1
grand jur
documen
medicatio
generic m
calcipotr
1
for 2014,
to comm
Lanoxin®
filing Par
documen
generic v
response
1
received
31 Imp
https://ww32 Imp33 Par
subpoena. 34 Id.
ndence with
as was not li
Later,22.
ry subpoena
nts regarding
ons. In partic
medications:
iene topical
Par. T23.
, Par disclos
unications w
® (digoxin)
r revealed th
nts related to
version of Co
on October
Actav24.
subpoenas f
pax SEC Formw.sec.gov/Arc
pax, SEC 2015
r Pharmaceutic
any compet
mited to a p
, Impax furth
from the Jus
g the sales, m
cular the Jus
digoxin, ter
solution.”32
The federal g
ed that it had
with competi
oral tablets a
hat the CTAG
our agreem
ovis’s Lanox
28, 2014.
vis. Actavis’s
from DOJ. A
m 8-K (Nov. 6, chives/edgar/da
5 Form 10-K, a
cals Companies
titor about th
articular dru
her disclosed
stice Departm
marketing, an
stice Departm
rbutaline sul
grand jury’s
d received a
itors regardin
and our gene
G served a su
ment with Cov
xin® (digoxi
s parent Alle
Allergan repo
2014), ata/1003642/00
at F-53.
s, Inc., SEC 20
- 34 -
he sale of gen
ug or a partic
d that on Ma
ment reques
nd pricing of
ment’s inves
fate tablets,
probe contin
subpoena fr
ng our autho
eric doxycyc
ubpoena on
vis Pharma S
in) oral table
ergan plc als
orted that, on
001193125144
014 Form 10-K
neric drugs.
cular timefra
arch 13, 2015
sting the prod
f certain gen
stigation curr
prilocaine/li
nues to expa
rom DOJ “re
orized generi
cline produc
Par on Augu
S.a.r.l. to dis
ets.”34 Par st
o disclosed
n June 25, 20
02210/d81655
K, at 37. Covis
”31 The scop
ame.
5, “the Comp
duction of in
neric prescrip
rrently focus
idocaine cre
and. In an SE
equesting do
ic version of
cts.”33 Moreo
ust 6, 2014 “
stribute an au
tated that it c
in public fili
015, Actavis
55d8k.htm.
Pharmaceutica
pe of the
pany receive
nformation a
ption
es on four
am, and
EC Form 10-
ocuments rel
f Covis’s
over, in that
“requesting
uthorized
completed it
ings that the
s received a
als received a s
ed a
and
-K
ated
same
s
ey
similar
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 34 of 51
subpoena
Company
1
from DO
Doxycyc
received
pricing a
commun
1
subpoena
informati
metformi
about suc
1
executed
significan
must dem
1
from DO
35 All36 My37 Id. 38 My
http://apps2LQZGT&
39 Id.
a from DOJ
y’s generic p
Mylan25.
OJ “seeking i
cline product
a similar sub
nd sale of ce
ications with
More 26.
a to Mylan a
ion relating t
in, Proprano
ch products.”
Signif27.
d” in connect
nt escalation
monstrate “pr
Sun. O28.
OJ “seeking i
lergan, SEC 20
ylan, SEC 2015
ylan SEC Form.shareholder.co
&docid=116784
“seeking inf
products and
n. Mylan sim
nformation r
ts and any co
bpoena from
ertain of the
h competitor
recently, on
and certain em
to the marke
olol and Vera
”38
ficantly, My
tion with DO
n of the DOJ
robable caus
On or about
nformation a
015 Form 10-K
5 Form 10-K, a
m 10-Q, at 58 (Nom/sec/viewer486#MYL10Q
formation rel
d communica
milarly disclo
relating to th
ommunicatio
m the CTAG,
Company’s
rs about such
n November
mployees an
eting, pricing
apamil produ
lan also disc
OJ’s investig
J’s investigat
se.”
May 28, 20
about the pri
K, at F-106.
at 160.
Nov. 10, 2016)Content.aspx?c
Q_20160930XD
- 35 -
lating to the
ations with c
osed in a 20
he marketing
ons with com
, seeking “in
generic pro
h products.”3
10, 2016, M
nd senior ma
g and sale of
ucts and any
closed that “
gation.39 The
tion because
16, Sun disc
icing and ma
), companyid=AB
DOC_HTM_S5
marketing a
competitors a
16 SEC filin
g, pricing, an
mpetitors abo
nformation r
ducts (includ
37
Mylan disclos
anagement “s
f our generic
y communica
[r]elated sea
e issuance of
e to obtain a
closed that it
arketing of t
BEA-582E80BDD42
and pricing o
about such p
ng that it rec
nd sale of ou
out such pro
relating to th
ding Doxycy
sed that DOJ
seeking addi
c Cidofovir,
ations with c
arch warrant
f warrants rep
warrant, the
t had receive
the generic d
215D11A4040
of certain of
products.”35
eived a subp
ur generic
oducts.”36 My
he marketing
ycline) and
J issued a
itional
Glipizide-
competitors
s also were
presents a
e governmen
ed a subpoen
drugs it sells
0D12D4C2E29
f the
poena
ylan
,
nt
na
in
97.
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 35 of 51
the Unite
commun
1
filing tha
relating t
commun
disclosed
1
of numer
Division
marketin
Pharma a
informati
1
received
seeking d
USA’s ge
same filin
40 Ind
http://fortu41 Id. 42 Dr.43 Ma44 Tev
SECText&JkRTRVE9
ed States.”40
ications with
Dr. R29.
at it had rece
to the marke
ications with
d that it had r
Mayn30.
rous generic
of the US D
ng, pricing an
also disclose
ion.
Teva. 31.
a subpoena
documents a
eneric produ
ng, Teva dis
dia’s Sun Pharmune.com/2016/0
. Reddy’s, SEC
ayne Pharma, 2
va, SEC Form &TEXT=aHR0c9MCZTRVE9
DOJ also so
h competitor
eddy’s. On o
ived a subpo
ting, pricing
h competitor
received a su
ne. In its 201
pharmaceut
Department o
nd sales of se
ed that it had
On August
from the An
and other info
ucts and com
sclosed that o
ma Gets U.S. S05/28/sun-phar
C Form 6-K (A
2016 Annual R
6-K at 25 (AugcDovL2FwaS5MCZTUURFU
ought docum
rs.”41
or about Aug
oena from th
g and sale of
rs about such
ubpoena from
6 Annual Re
tical compan
of Justice [] i
elect generic
d received a s
4, 2016, Tev
ntitrust Divis
formation rel
mmunications
on July 12, 2
Subpoena Overrma-drug-price
Aug. 31, 2016).
Report, at 75.
g. 4, 2016), htt50ZW5rd2l6YXU0M9U0VDV
- 36 -
ments related
gust 11, 2016
he DOJ on Ju
f certain . . . g
h products.”4
m the CTAG
eport, Mayn
nies to receiv
in the last tw
c drugs.”43 In
subpoena fro
va disclosed
sion of the U
lating to the
s with comp
2016, “Teva
r Generic Druge-subpoena.
tp://ir.tevapharXJkLmNvbS9mElPTl9FTlRJU
d to “employ
6, Dr. Reddy
uly 6, 2016,
generic prod
42 In that sam
G concerning
ne Pharma Lt
ve a subpoen
wo years seek
n the same A
om the CTA
d that “[o]n Ju
United States
marketing a
petitors abou
USA receiv
gs Pricing, Fort
rm.com/phoenimaWxpbmcue
UkUmc3Vic2lk
yee and corpo
y’s disclosed
“seeking inf
ducts and any
me filing, Dr
g the same m
td. disclosed
na form the A
king informa
Annual Repo
AG seeking s
une 21, 2015
s Departmen
and pricing o
ut such produ
ved a subpoe
tune (May 28,
ix.zhtml?c=739eG1sP2lwYWdkPTU3.
orate records
d in an SEC
formation
y
r. Reddy’s
matters.
d that it was
Antitrust
ation relating
ort, Mayne
imilar
5, Teva USA
nt of Justice
of certain of
ucts.”44 In th
ena from the
2016),
925&p=irol-dlPTExMDcyO
s and
“one
g to
A
Teva
hat
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Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 36 of 51
Connecti
state anti
1
two senio
States De
employee
competit
related m
1
subject to
the Zydu
is being i
1
amounts
conduct,
divalproe
Members
45 Id. 46 Tar
SECText&wJkRTRV
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icut Attorney
itrust law vio
Taro. 32.
or officers in
epartment of
e records, ge
ors and othe
matters.”46
Zydus33.
o reporting r
us is also a ta
investigated
Durin34.
of divalproe
these purcha
ex ER. The p
s would have
ro, SEC Form &TEXT=aHR0cVE9MCZTRVE
pali Mukherjeesofindia.indiatishow/5530106
llary win may pw.firstpost.com
y General se
olations.”45
On Septemb
n Taro’s com
f Justice, An
eneric pharm
ers regarding
s. Although Z
requirements
arget of the D
in connectio
ng the relevan
ex ER indire
asers have p
prices paid w
e paid absen
6-K (Sept. 9, 2cDovL2FwaS5
E9MCZTUURF
el, US polls, primes.com/busi0.cms.
pose pricing chm/world/hillary-
eeking docum
ber 9, 2016,
mmercial team
ntitrust Divis
maceutical pr
g the sale of g
Zydus is not
s under feder
DOJ’s sweep
on with its m
ANTITR
nt period, Pl
ectly from De
paid, and con
were substan
nt the illegal
2016), http://ph50ZW5rd2l6YXFU0M9U0VDV
ricing pressureiness/india-bus
hallenges for p-win-may-pose
- 37 -
ments and ot
Taro disclos
m, “received
sion, seeking
roducts and p
generic phar
t publicly tra
ral securities
ping investig
marketing an
RUST IMPA
laintiff and C
efendants. A
ntinue to pay
ntially higher
conduct alle
hx.corporate-ir.XJkLmNvbS9mVElPTl9FTlRJ
e may hit Indiainess/US-polls
pharma cos: Ree-pricing-challe
ther informa
sed that on S
d grand jury
g documents
pricing, com
rmaceutical
aded in the U
s laws, recen
gation.47 Acc
nd sale of div
ACT
Class Memb
As a result of
y, artificially
r than the pri
eged in this C
.net/phoenix.zhmaWxpbmcueJUkUmc3Vic2
an pharma cos,s-pricing-press
eport, F. Worldenges-for-phar
ation relating
September 8
subpoenas f
relating to c
mmunication
products, an
United States
nt press repo
cording to on
valproex ER
ers purchase
f Defendants
y inflated pric
ices that Pla
Complaint.
html?c=11469eG1sP2lwYWd2lkPTU3.
, The Times of sure-may-hit-In
d (Nov. 7, 2016rma-cos-report
g to potential
, 2016, it an
from the Uni
corporate an
s with
nd certain oth
s and thus no
orts have stat
ne article, Zy
.48
ed substantia
s’ illegal
ces for
aintiff and Cl
8&p=irol-dlPTExMTM0
f India, ndian-pharma-
6), t-3093544.html
l
nd
ited
d
her
ot
ted
ydus
al
lass
MjU
l.
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 37 of 51
1
and dama
to date. T
discovery
1
substanti
1
substanti
across sta
conduct h
consume
for divalp
1
forms of
commerc
1
generally
that “[e]v
price at th
overchar
14
industry
49 See50 Id.
As a c35.
age to their b
The full amo
y and upon p
Defen36.
ially affected
At all 37.
ial amounts o
ate and natio
had substant
rs and third-
proex ER.
At all 38.
business com
ce across stat
Econo39.
y results in h
very person a
he top. 49 He
ge that a firm
The in40.
ensures that
e Herbert Hove
consequence
business and
ounts, forms,
proof at trial
ndants’ effor
d interstate c
material tim
of divalproex
onal lines an
tial intrastate
-party payor
times, Defe
mmunication
te and nation
omists recog
higher prices
at every stag
e also says th
m at one dist
nstitutional s
overcharges
enkamp, Feder
e, purchasers
d property in
and compon
.
rts to restrain
commerce—
mes, Defenda
x ER in a co
d throughou
e effects in e
s within each
ndants trans
ns and trans
nal lines in c
gnize that any
at every lev
ge in the cha
hat “[t]heore
tribution lev
structure of p
s at the high
ral Antitrust Po
- 38 -
s of divalpro
n the form of
nents of such
n competition
—and continue
ants manufac
ontinuous an
ut the United
every state of
h state were
smitted funds
actions in a
connection w
y overcharge
vel below. Pr
ain will be po
etically, one
vel will pass
pricing and r
er level of d
olicy: The Law
ex ER have
f overcharge
h damages w
n in the diva
e to do so.
ctured, prom
nd uninterrup
d States. Defe
f purchase b
forced to pa
s and contra
continuous a
with the sale
e at a higher
rofessor Her
oorer” as a r
can calculat
on to those a
regulation in
distribution a
w of Competitio
sustained su
es—and their
will be calcu
alproex ER m
moted, distrib
pted flow of
fendants’ ant
because, amo
ay supracom
acts, invoices
and uninterr
of divalproe
r level of dis
rbert Hovenk
result of the a
te the percen
at the next le
n the pharma
are passed on
on and Its Prac
ubstantial los
r losses cont
ulated after
market have
buted, and so
commerce
ticompetitive
ong other thi
mpetitive pric
s, and other
rupted flow o
ex ER.
tribution
kamp explain
anticompetit
ntage of any
evel.”50
aceutical dru
n to end-pay
ctice, at 564 (19
sses
tinue
old
e
ings,
ces
of
ns
tive
ug
yors.
994).
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 38 of 51
Wholesa
Members
14
and third
absent D
14
anticomp
14
and conti
Defendan
14
on behalf
injunctiv
14
(b)(3), on
arising fr
lers and reta
s.
Defen41.
d-party payor
efendants’ u
The p42.
petitive cond
The in43.
inue to pay,
nts.
Plaint44.
f of themselv
ve and equita
The I
All pepurchpurchby itsebenefiincludcondu
Plaint45.
n behalf of th
rom Defenda
The D
ailers passed
ndants’ antic
rs prices in e
unlawful acti
rices were in
duct.
nflated price
are traceable
tiff brings th
ves and a na
able relief:
njunctive C
ersons or entased, paid, aase price forelf, its famil
ficiaries, fromding the dateuct ceased.
tiff also bring
hemselves an
ants’ conduc
Damages Cl
on the inflat
ompetitive c
excess of wh
ions.
nflated as a d
es that Plaint
e to and the
CLASS A
is action as a
ationwide cla
Class:
tities in the Uand providedr divalproex ies, or its me
m at least as e that the ant
gs this action
nd a class of
ct as describe
ass:
- 39 -
ted prices of
conduct enab
hat they othe
direct and fo
iff and Class
foreseeable
ALLEGATI
a class action
ass of similar
United Statesd reimbursemER, other th
embers, empearly as Oct
ticompetitive
n as a class a
f similarly si
ed below:
f divalproex
bled Defend
erwise would
oreseeable re
s Members h
result of, the
IONS
n, under Fed
rly situated i
s and its terrment for somhan for resalployees, insutober 1, 2013e effects of D
action, unde
ituated indiv
ER to Plain
dants to charg
d have been
esult of Defe
have paid fo
e overcharge
d. R. Civ. P.
individuals s
ritories who me or all of thle, for consumureds, partici3 through anDefendants’
er Fed. R. Civ
viduals seeki
ntiff and Clas
ge consumer
able to charg
endants’
r divalproex
es caused by
23(a) and (b
seeking
indirectly he mption ipants, or nd unlawful
v. P. 23(a) a
ing damages
ss
rs
ge
x ER,
y
b)(2),
and
s
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 39 of 51
14
Classes:
em
b
o
an
m
fo
fa
14
believes
All pereimbother membas earanticothe foCalifoMichiYork,DakotDistri
The fo46.
mployees, su
enefit plans;
f resale or di
nother third-
members);
or brand and
amilies.
Memb47.
that there ar
ersons or entursement fothan for resa
bers, employrly as Octobeompetitive efllowing state
ornia, Floridaigan, Minnes North Carota, Tennessect of Columb
ollowing per
(a) De
ubsidiaries, o
(b) All
;
(c) All
irectly from
(d) Fu
-party payor
(e) Fla
d generic dru
(f) Th
bers of the C
re thousands
tities who inr some or alale, for consuyees, insureder 1, 2013 thffects of Defes, commonwa, Hawaii, Iosota, Mississlina, North D
ee, Utah, Verbia.
rsons and en
efendants and
or affiliates;
l governmen
l persons or
Defendants
lly-insured h
covering 10
at co-payers
ugs); and
he judges in t
Classes are so
of members
- 40 -
directly purcl of the purcumption by
ds, participanhrough and infendants’ unwealths, andowa, Kansassippi, NebrasDakota, Oregrmont, West
ntities are exc
d their couns
ntal entities,
entities who
or their affi
health plans
00% of the p
(consumers
this case and
o numerous
s of each cla
chased, paidchase price foitself, its fam
nts, or benefincluding the
nlawful condd territories: s, Massachusska, Nevadagon, Rhode t Virginia, W
cluded from
sel, officers,
except for g
o purchased
liates;
(plans that p
plan’s reimbu
who paid th
d any membe
that joinder
ss.
d, and providfor: divalproemilies, or its ficiaries, frome date that thduct ceased, i
Alabama, Asetts, Mainea, New MexiIsland, Sout
Wisconsin, an
m the above-d
, directors, m
government-f
divalproex E
purchased in
ursement ob
he same co-p
ers of their i
is impractic
ded ex ER,
m at least he in any of
Arizona, , ico, New th nd the
described
management,
funded empl
ER for purpo
nsurance from
bligations to
payment amo
mmediate
cable. Plainti
,
loyee
oses
m
its
ount
iff
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 40 of 51
14
and mem
they paid
conduct—
14
Classes.
the Class
1
action an
pharmace
1
over que
acted on
Class.
1
th
w
d
Plaint48.
mbers of the C
d artificially
—and contin
Plaint49.
Plaintiff’s in
ses.
Plaint50.
ntitrust litigat
eutical produ
Quest51.
stions that m
grounds gen
Quest52.
he prices of d
with respect t
ivalproex ER
tiff’s claims
Classes were
inflated pric
nue to do so.
tiff will fairly
nterests are c
tiff is represe
tion, and wit
ucts.
tions of law a
may affect on
nerally appli
tions of law a
(a) the
(b) wh
divalproex E
(c) wh
to divalproex
(d) wh
R market;
are typical o
e damaged b
ces for divalp
y and adequ
coincident w
ented by cou
th experienc
and fact com
nly individua
cable to each
and fact com
e identity of
hether Defen
ER;
hether Defen
x ER;
hether Defen
- 41 -
of the claims
by the same w
proex ER as
ately protect
with, and not
unsel with ex
ce in class ac
mmon to the
al members o
h member of
mmon to mem
the participa
ndants consp
ndants consp
ndants’ condu
s of the mem
wrongful co
a result of D
t and represe
antagonistic
xperience in
ction antitrus
members of
of the Classe
f the Injunct
mbers of bot
ants in the co
ired to fix, r
ired to alloc
uct harmed c
mbers of the C
nduct by De
Defendants’
ent the intere
c to, those of
the prosecut
st litigation i
f the Classes
es because D
tive Class an
th Classes in
onspiracy;
raise, mainta
cate markets
competition
Classes. Plai
efendants in
wrongful
ests of the
f the membe
tion of class
involving
s predominat
Defendants h
nd Damages
nclude:
ain, and stabi
or customer
in the
intiff
that
ers of
s
te
have
ilize
rs
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 41 of 51
af
in
ov
C
re
1
of the con
geograph
simultane
expense t
the class
redress o
potential
1
preclude
1
ffected inter
njury to the b
vercharges;
Classes in the
estraint and t
Class 53.
ntroversy. S
hically dispe
eously, effic
that numerou
mechanism,
on claims tha
difficulties
Plaint54.
its maintena
(By Plai
Plaint55.
(e) wh
rstate and int
(f) wh
business or p
(g) the
e aggregate;
(h) the
to restore co
action treatm
uch treatmen
rsed persons
ciently, and w
us individua
, including p
at could not p
in managem
tiff knows of
ance as a cla
F
Violatiintiff and In
tiff incorpora
hether Defen
trastate comm
hether, and to
property of P
e amount of o
and
e injunctive a
ompetition in
ment is a sup
nt will perm
s or entities t
without the u
al actions wo
providing inj
practicably b
ment of this c
f no special d
ass action.
CLAIMS
FIRST CLA
ion of Shermnjunctive Cl
ates the prec
- 42 -
ndants’ activi
merce;
o what exten
Plaintiff and
overcharges
and other eq
n the divalpro
perior metho
mit a large nu
to prosecute
unnecessary
ould engende
jured person
be pursued in
class action.
difficulty to
S FOR REL
AIM FOR R
man Act § 1lass Membe
ceding parag
ities alleged
nt, Defendan
members of
s paid by Pla
quitable relie
roex ER mar
od for the fai
umber of sim
their comm
duplication
er. The bene
ns or entities
ndividually,
be encounte
LIEF
RELIEF
1, 15 U.S.C. ers Against A
graphs by ref
d herein have
nts’ conduct
f the Classes
aintiff and m
ef needed to
rket.
ir and efficie
milarly situate
mon claims in
of evidence
efits of proce
a method fo
substantiall
ered in this a
§ 1 All Defenda
ference.
e substantiall
caused antit
s in the natur
members of th
end Defenda
ent adjudicat
ed,
n a single for
e, effort, or
eeding throu
or obtaining
ly outweighs
action that w
ants)
ly
trust
re of
he
ants’
tion
rum
gh
s any
would
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 42 of 51
1
anticomp
allocate m
1
Injunctiv
1
market al
Act. By t
unreason
unreason
inflated p
1
suffer ha
Defendan
Injunctiv
alleged in
1
divalproe
1
Federal R
Section 1
1
including
Defen56.
petitive schem
markets and
Had D57.
ve Class Mem
Defen58.
llocation for
their agreem
nable restrain
nable restrain
prices for div
Plaint59.
rm, as a resu
nts’ anticom
ve Class Mem
n this Comp
Plaint60.
ex ER indire
Plaint61.
Rule of Civil
1 of the Sher
Plaint62.
g disgorgeme
ndants knowi
me to fix, ra
customers f
Defendants c
mbers would
ndants intend
r divalproex
ment, Defend
nt of trade in
nt on compet
valproex ER
tiff and Injun
ult of paying
mpetitive con
mbers also fa
laint.
tiff and Injun
ectly from D
tiff and Injun
l Procedure
rman Act.
tiff and Injun
ent of profit
ingly, intent
aise, maintain
for divalproe
competed ins
d have paid s
ded, and acco
ER, which a
ants intentio
n violation of
tition, Plaint
R—and conti
nctive Class
g higher price
duct and con
ace a continu
nctive Class
efendants.
nctive Class
57 and 28 U
nctive Class
s, pursuant t
- 43 -
tionally, and
n, and stabil
ex ER—and
stead of cons
substantially
omplished, a
are per se vio
onally and w
f Section 1 o
tiff and Injun
nue to do so
Members ha
es for divalp
ntinuing anti
uing threat o
Members ha
Members se
U.S.C. § 2201
Members al
to Section 16
d cooperative
lize the price
continue to
spiring to re
y lower price
a price-fixin
olations of S
wrongfully co
of the Sherm
nctive Class
o.
ave suffered
proex ER tha
icompetitive
of injury from
ave purchase
eek a declara
1(a) that Def
lso seek equi
6 of the Clay
ely engaged
es of divalpro
do so.
strain trade,
es for divalpr
ng conspiracy
Section 1 of
onspired and
man Act. As a
Members pa
d harm, and a
an they woul
e agreements
m the unlaw
ed substantia
atory judgme
fendants’ co
itable and in
yton Act, 15
in an
oex ER, and
Plaintiff and
roex ER.
y and horizo
the Sherman
d combined i
a result of th
aid artificial
are continuin
ld have abse
s. Plaintiff an
wful conduct
al amounts o
ent pursuant
nduct violat
njunctive reli
U.S.C. § 26
d
d
ontal
n
in an
his
lly
ng to
ent
nd
of
t to
tes
ief,
6, and
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 43 of 51
other app
unlawful
does not
1
1
anticomp
allocate m
1
the mann
1
relevant m
1
agreemen
laws.
1
of the sta
supracom
continue
1
m
plicable law,
l conduct, an
reoccur in th
(By Pla
Plaint63.
Defen64.
petitive schem
markets and
Defen65.
ner explained
Defen66.
market to ha
Defen67.
nts between
Defen68.
ates listed be
mpetitively p
to do so.
Defen69.
members of th
, to correct fo
nd other relie
he future.
SE
aintiff and D
tiff incorpora
ndants knowi
me to fix, ra
customers f
ndants’ unlaw
d above.
ndants’ unlaw
arm competit
ndants’ actio
actual and p
ndants’ supra
elow in that e
priced divalp
ndants’ cond
(a) Ala
he Damages
for the antico
ef to ensure t
ECOND CL
State AntDamages Cla
ates the prec
ingly, intent
aise, maintain
for divalproe
wful conduct
wful conduct
tion.
ns constitute
potential com
acompetitive
each purchas
proex ER cau
duct violated
a. Code § 6-
s Class;
- 44 -
ompetitive m
that the same
LAIM FOR
titrust Violaass Member
ceding parag
tionally, and
n, and stabil
ex ER—and
t harmed Pla
t covered a s
e horizontal
mpetitors and
e pricing con
se by Plainti
used injury t
the followin
-5-60, with r
market effect
e or similar
R RELIEF
ations rs Against A
graphs by ref
d cooperative
lize the price
continue to
aintiff and D
sufficiently s
market alloc
d are illegal p
nstitute a con
iff or a mem
to their busin
ng state laws
respect to pu
s caused by
anticompetit
All Defenda
ference.
ely engaged
es of divalpro
do so.
Damages Cla
substantial p
cation and pr
per se under
ntinuing viol
mber of the D
ness or prope
s:
urchases in A
Defendants’
tive conduct
ants)
in an
oex ER and
ass Members
percentage o
rice-fixing
r state antitru
lation of the
Damages Clas
erty—and
Alabama by
’
t
s in
f the
ust
laws
ss of
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 44 of 51
- 45 -
(b) Ariz. Rev. Stat. §§ 44-1401, et seq., with respect to purchases in
Arizona by members of the Damages Class;
(c) Cal. Bus. Code §§ 16700, et seq., and Cal. Bus. Code §§ 17200, et
seq., with respect to purchases in California by members of the Damages Class;
(d) D.C. Code Ann. §§ 28-4501, et seq., with respect to purchases in
the District of Columbia by members of the Damages Class;
(e) Fla. Stat. §§ 501.201, et seq., with respect to purchases in Florida
by members of the Damages Class;
(f) Hawaii Code § 480, et seq., with respect to purchases in Hawaii by
members of the Damages Class;
(g) Iowa Code §§ 553 et seq., with respect to purchases in Iowa by
members of the Damages Class;
(h) Kan. Stat. Ann. §§ 50-101, et seq., with respect to purchases in
Kansas by members of the Damages Class;
(i) Mass. Gen. L. Ch. 93A, et seq., with respect to purchases in
Massachusetts by members of the Damages Class;
(j) Me. Rev. Stat. Ann. 10, §§ 1101, et seq., with respect to purchases
in Maine by members of the Damages Class;
(k) Mich. Comp. Laws Ann. §§ 445.772, et seq., with respect to
purchases in Michigan by members of the Damages Class;
(l) Minn. Stat. §§ 325D.49, et seq., with respect to purchases in
Minnesota by members of the Damages Class;
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 45 of 51
- 46 -
(m) Miss. Code Ann. §§ 75-21-1, et seq., with respect to purchases in
Mississippi by members of the Damages Class;
(n) Neb. Code Ann. §§ 59-801, et seq., with respect to purchases in
Nebraska by members of the Damages Class;
(o) Nev. Rev. Stat. Ann. §§ 598A, et seq., with respect to purchases in
Nevada by members of the Damages Class;
(p) N.M. Stat. Ann. §§ 57-1-1, et seq., with respect to purchases in
New Mexico by members of the Damages Class;
(q) N.Y. Gen. Bus. L. §§ 340, et seq., with respect to purchases in
New York by members of the Damages Class;
(r) N.C. Gen. Stat. §§ 75-1, et seq., with respect to purchases in North
Carolina by members of the Damages Class;
(s) N.D. Cent. Code §§ 51-08.1-01, et seq., with respect to purchases
in North Dakota by members of the Damages Class;
(t) Or. Rev. Stat. §§ 6.46.705, et seq., with respect to purchases in
Oregon by members of the Damages Class;
(u) R.I. Gen. Laws §§ 6-36-1 et seq., with respect to purchases in
Rhode Island by members of the Damages Class;
(v) S.D. Codified Laws Ann. §§ 37-1, et seq., with respect to
purchases in South Dakota by members of the Damages Class;
(w) Tenn. Code Ann. §§ 47-25-101, et seq., with respect to purchases
in Tennessee by members of the Damages Class;
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 46 of 51
in
V
V
W
1
their busi
denied fr
paying hi
wrongful
prevent,
1
permitted
conduct.
1
and Dam
1
practices
n Utah by me
Vermont by m
Virginia by m
Wisconsin by
Plaint70.
iness or prop
ree and open
igher prices
l conduct. Th
and flow fro
Plaint71.
d by law for
Defen72.
mages Class M
Defen73.
in violation
(x) Uta
embers of th
(y) Vt
members of t
(z) W.
members of t
(aa) Wi
y members o
tiff and Dam
perty by Def
n competition
for divalpro
hese injuries
om that whic
tiff and Dam
the injuries
ndants are jo
Members.
ndants have e
n of the abov
ah Code Ann
he Damages
. Stat. Ann. 9
the Damage
.Va. Code §§
the Damages
is. Stat. §§ 1
of the Damag
mages Class M
fendants’ ant
n between co
oex ER than
s are of the ty
ch makes De
mages Class M
they suffere
intly and sev
engaged in u
ve-listed state
- 47 -
n. §§ 76-10-
Class;
9, §§ 2453, e
s Class;
§ 47-18-3, e
s Class; and
33.03, et seq
ges Class.
Members hav
titrust violat
ompetitors in
they would h
ype the abov
efendants’ co
Members see
ed as a result
verally liable
unfair compe
e antitrust la
-3101, et seq
et seq., with
t seq., with r
q., with resp
ave been and
tions. Their i
n the market
have paid in
ve antitrust l
onduct unlaw
ek damages
t of Defenda
e for all dam
etition or unf
aws.
q., with respe
h respect to p
respect to pu
pect to purch
d continue to
injuries cons
ts for divalpr
n the absence
laws were de
wful.
and multiple
ants’ anticom
mages suffere
fair or decep
ect to purcha
purchases in
urchases in W
hases in
be injured i
sist of: (1) be
roex ER; and
e of Defenda
esigned to
e damages a
mpetitive
ed by Plainti
ptive acts or
ases
West
in
eing
d (2)
ants’
as
iff
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 47 of 51
1
1
in this Co
1
of divalp
1
Members
1
economic
to the eco
1
from any
considera
Damages
1
any reme
indirectly
compens
1
artificiall
unlawful
(By Pla
Plaint74.
To the75.
omplaint.
Defen76.
proex ER ma
Defen77.
s’ overpaym
Plaint78.
c benefit upo
onomic detri
It wou79.
y party with w
ation to anyo
s Class Mem
It wou80.
edy against t
y purchased
ate Plaintiff
The ec81.
ly inflated pr
l practices.
T
aintiff and D
tiff incorpora
e extent requ
ndants have b
ade possible
ndants’ finan
ments for diva
tiff and Dam
on Defendan
iment of Pla
uld be futile
whom they h
one for any o
mbers.
uld be futile
he immediat
divalproex E
f and Damag
conomic ben
rices for div
THIRD CLA
UnjusDamages Cla
ates the prec
uired, this cla
benefited an
by the unlaw
ncial benefits
alproex ER.
mages Class M
nts in the nat
aintiff and Da
for Plaintiff
had or have
of the benefi
for Plaintiff
te intermedia
ER as those
es Class Me
nefit Defend
alproex ER
- 48 -
AIM FOR R
st Enrichmeass Member
ceding parag
aim is plead
nd continue t
wful and ineq
s are traceab
Members hav
ture of profit
amages Clas
f and Damag
privity of co
its they recei
f and Damag
ary in the ch
intermediari
embers for D
dants derived
is a direct an
RELIEF
ent rs Against A
graphs by ref
ded in the alte
o benefit fro
quitable acts
ble to Plaintif
ave conferred
ts resulting f
ss Members.
ges Class Me
ontract. Defe
ived indirect
ges Class Me
hain of distri
ies are not li
Defendants’ u
d from charg
nd proximate
All Defenda
ference.
ernative to th
om the overc
s alleged in t
ff’s and Dam
d and continu
from unlawf
.
embers to se
endants have
tly from Plai
embers to se
ibution from
iable and wo
unlawful con
ging monopo
e result of D
ants)
he other clai
charges on sa
this Compla
mages Class
ue to confer
ful overcharg
ek a remedy
e paid no
intiff and
ek to exhaus
m which they
ould not
nduct.
olistic and
Defendants’
ims
ales
int.
an
ges,
y
st
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 48 of 51
1
Damages
Defendan
1
of the sta
overchar
from Def
1
Plaintiff
1
they rece
1
Defendan
1
A
judgment
A
Rule of C
given to m
represent
B
other stat
C
The fi82.
s Class Mem
nts’ benefit.
It wou83.
ates in the Un
ges Plaintiff
fendants’ un
Defen84.
and the Dam
Defen85.
eived in a com
A con86.
nts received
Plaint87.
Accordingly,
t that:
A. Determ
Civil Procedu
members of
tative of the
B. Decla
te statutes se
C. Enjoin
inancial bene
mbers, who p
uld be inequi
nited States
f and Damag
nfair and unc
ndants are aw
mages Class.
ndants should
mmon fund
nstructive tru
that are trac
tiff and Dam
Plaintiff, on
mines that th
ure 23(a), (b
f the Classes
Classes;
ares that Defe
et forth abov
ns Defendan
efits Defend
paid, and con
itable under
and the Dist
ges Class Me
onscionable
ware of and a
d be compel
for the bene
ust should be
ceable to Pla
mages Class M
DEMAND
n its own beh
his case may
b)(2), and (b)
under Rule
fendants’ con
ve, and the co
nts from cont
- 49 -
dants derived
ntinue to pay
unjust enric
trict of Colum
embers paid
e methods, ac
appreciate th
led to disgor
efit of Plainti
e imposed up
intiff and Da
Members hav
FOR JUDG
half and on b
y be maintain
)(3), directs
23(c)(2), an
nduct violate
ommon law
tinuing their
d rightfully b
y, anticompe
chment princ
mbia for De
for divalpro
cts, and trad
he benefits b
rge all unlaw
iff and Dam
pon all unlaw
amages Clas
ave no adequ
GMENT
behalf of the
ned as a clas
that reasona
nd declares th
ed Section 1
of unjust en
r illegal activ
belong to Pla
etitive prices
ciples under
efendants to r
oex ER that w
de practices.
bestowed upo
wful or inequ
ages Class M
wful or inequ
ss Members.
uate remedy
e proposed C
ss action pur
able notice o
hat Plaintiff
of the Sherm
nrichment;
vities;
aintiff and
that inured
the laws of
retain any of
were derived
on them by
uitable proce
Members.
uitable sums
.
at law.
Classes, dem
rsuant to Fed
of this case b
is a proper
man Act, the
to
each
f the
d
eeds
s
ands
deral
e
e
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 49 of 51
- 50 -
D. Enters judgment against Defendants joint and severally and in favor of Plaintiff
and the Classes;
E. Grants Plaintiff and the Injunctive Class equitable relief in the nature of
disgorgement, restitution, and the creation of a constructive trust to remedy Defendants’ unjust
enrichment;
F. Awards the Plaintiff and the Damages Class damages and, where applicable,
treble, multiple, punitive, and other damages, in an amount to be determined at trial, including
interest;
G. Awards Plaintiff and the Classes their costs of suit, including reasonable
attorneys’ fees as provided by law; and
H. Grants further relief as necessary to correct for the anticompetitive market effects
caused by Defendants’ unlawful conduct, as the Court deems just.
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 50 of 51
Case 2:16-cv-06058-GEKP Document 1 Filed 11/17/16 Page 51 of 51