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From Antitrust Law Daily, July 20, 2018

$50M settlement approved for indirect purchasers in Aggrenox ‘pay-for-delay’ case

By Jeffrey May, J.D.

At a fairness hearing held yesterday, the federal district court in Bridgeport, Connecticut, granted final approval to an antitrust settlement, valued at more than $50 million, on behalf of indirect purchasers, including a number of labor unions and other third-party payors, of the anti-stroke medication Aggrenox. The class members alleged that anticompetitive "pay for delay" conduct delayed the release of a less expensive generic version of drug. The settlement fund amount was $54 million; however, it was reduced to $50,229,193 in light of an agreed upon drawn-down amount based on the percentage of the class excluded from the settlement. Class counsel was awarded $16,743,064 in fees (one-third of the settlement fund) and was reimbursed for $439,514.59 in expenses. Service awards of $10,000 for each class representative also were approved (In re Aggrenox Antitrust Litigation, July 19, 2018, Underhill, S.).

The settlement was executed in December 2017. After winning preliminary approval of the pact, the end-payor class moved for final approval of the settlement.

The settlement class is defined as all persons and entities in 31 states and jurisdictions, with certain named exceptions, that indirectly purchased or provided reimbursement for branded or generic Aggrenox. It consists of an estimated 42,000 members. Humana, Inc. was among the companies that opted out after objecting to the settlement.

In its filing, the class contended that the settlement was reached after nearly four years of hard-fought litigation. The private suits came on the heels of an FTC investigation, which began in 2009, into possible pay-for-delay conduct involving Aggrenox.

The challenged conduct involved an agreement between Boehringer and generic drug company Barr Laboratories (now Teva) reached in 2008. Boehringer had obtained a patent on the anti-coagulant drug marketed under the name Aggrenox. Barr had sought to market a generic equivalent, and Boehringer filed suit for patent infringement. The two reached a settlement under the terms of which Barr agreed to delay bringing a generic version of Aggrenox to market and also promised to promote Aggrenox in return for which Boehringer would drop its patent infringement suit and pay Barr a sum of money in part based on net sales of Aggrenox.

The class action settlement approved yesterday resolves the indirect purchaser action in connection with the Boehringer-Barr agreement. The FTC suit and other private actions continue.

The case is No. 3:14-md-02516-SRU.

Attorneys: Renae Steiner (Heins Mills & Olson, PLC); Marvin A. Miller (Miller Law LLC); and Steve Shadowen (Hilliard & Shadowen LLP) for the class. Brigid M. Carpenter (Baker, Donelson, Berman, Caldwell & Berkowitz, PC) for Teva Pharmaceuticals USA, Inc. Holly Letourneau (White & Case LLP) for Boehringer Ingelheim International GmbH. Alison Hanstead (White & Case LLP) for Boehringer Ingelheim Pharmaceuticals Inc.

Companies: Boehringer Ingelheim International GmbH; Boehringer Ingelheim Pharmaceuticals Inc.; Teva Pharmaceuticals USA, Inc.

MainStory: TopStory Antitrust ConnecticutNews

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