Prosecuting Cases in Federal and State Courts Throughout the United States

Cipro

We represent a class of California plaintiffs seeking damages arising from a reverse payment agreement between Bayer, Barr, and other generic drug companies, involving the blockbuster antibiotic Cipro. Plaintiffs claim that Bayer and the other Defendants entered into an illegal pay-for-delay or reverse payment agreement where Bayer agreed to pay $398.1 million to the generic Defendants in exchange for their promise to stay out of the market for Cipro. Plaintiffs allege that this unlawful agreement caused them to pay inflated prices for Cipro (and generic Cipro) from roughly 1997 through 2005.

In 2013, while the case was on appeal to the California Supreme Court, Bayer agreed to resolve Plaintiffs’ claims against them by paying $74 million to the benefit of the class. In 2015, the California Supreme Court ruled in Plaintiffs’ favor and revived their antitrust and unfair competition claims. The California Supreme Court sent the case back down to the Superior Court in San Diego County, where the case is currently proceeding towards trial.

In August 2016, Plaintiffs entered a settlement agreement with Defendants Hoechst Marion Roussel, The Rugby Group, and Watson Laboratories. The Defendants agreed to pay $100 million to resolve Plaintiffs’ claims. The court granted preliminary approval of the settlement on August 15, 2016, and set a hearing for final approval on October 7, 2016. More information about the settlement can be found here.

The case is currently proceeding against Barr, the lone remaining defendant. Trial is set for January 20, 2017.

2009 Case Updates

In August 2009, the Superior Court granted Defendants’ motions for summary judgment. Plaintiffs appealed and filed a brief supported by 78 experts, including antitrust, intellectual property, business, and economics professors, claiming that the ruling would “shield many anti-competitive agreements from the reach of antitrust law,” thus undermining the free market and competition to consumers.

2011 Case Updates

In October 2011, the appellate court affirmed the trial court’s ruling in favor of Defendants.

In December 2011, plaintiffs filed a Petition for Review with the California Supreme Court asking for a reversal of the decision.

2012 Case Updates

In February, 2012, the California Supreme Court granted the Petition for Review, thus agreeing to hear the case on the merits. “We are grateful that the California Supreme Court will review this case, and look forward to arguing that these collusive agreements violate California’s antitrust laws,” said attorney Joseph R. Saveri. “With prescription drug prices continuing their unchecked rise, drug companies owning prescription drug patents must not be permitted to suppress competition by buying off their would-be rivals.”

Shortly afterwards, on March 16, plaintiffs filed a new brief on the merits of the case with the California Supreme Court.

On August 20, 2012, plaintiffs filed their reply brief with the California Supreme Court.

On its own motion, the Court stayed further briefing pending action by the United States Supreme Court in similar reverse payment cases.

2013 Case Updates

On March 25, 2013, the United States Supreme Court heard oral argument in FTC v. Actavis. On June 17, 2013, the U.S. Supreme Court reversed, holding that reverse payment agreements may violate the antitrust laws.

On June 7, 2013, Plaintiffs and Bayer entered a settlement agreement to resolve Plaintiffs’ claims in this litigation. In exchange, Bayer agreed to pay $74 million to the benefit of the Class. On November 18, 2013, the Court granted Final Approval of the Bayer Settlement and awarded attorneys’ fees to Plaintiffs’ Counsel.

Following approval of the Bayer Settlement, the California Supreme Court entered an Order vacating the stay entered on July 10, 2013, and requesting additional briefing concerning the U.S. Supreme’s decision in FTC v. Actavis.

2014 Case Updates

On January 24, 2014, in response to the California Supreme Court’s request, Plaintiffs submitted their supplemental letter brief discussing the relevance of Actavis. The Defendants submitted their supplemental letter brief as well.

On March 18, 2014, several amicus curiae briefs were submitted to the California Supreme Court addressing the Cipro appeal, including those from the California Attorney General, the American Antitrust Institute, 49 Professors, the Consumer Attorneys of California, the Generic Pharmaceutical Association, the Chamber of Commerce of the United States, and the Washington Legal Foundation.

On April 24, 2014, the parties submitted their responses to the amicus curiae briefs. Plaintiffs’ brief can be read here, and the Defendants’ here.

The California Supreme Court heard oral arguments on March 3, 2015.

Listen to hearing here.

2015 Case Updates

On May 7, 2015, the California Supreme Court reversed summary judgment and revitalized the class claims of California consumers. The Court, in a unanimous decision, held, “Parties illegally restrain trade when they privately agree to substitute consensual monopoly in place of potential competition.” The Court rejected the “scope-of-the-patent” test applied by the lower courts, and instead pronounced a “structured rule of reason” test to determine the legality of pay-for-delay settlements under California’s Cartwright Act. The decision will put much greater scrutiny on pharmaceutical drug patent settlements and resound to the benefit of consumers–a primary purpose of the Cartwright Act emphasized in the Court’s opinion. Read the opinion here.

The California Supreme Court is the first state high court to decide the legality of pay-for-delay settlements under state law. The court’s ruling also marks the first decision by an appellate court in a pay-for-delay case since the U.S. Supreme Court’s decision in FTC. v. Actavis.

On July 8, 2015, the California Supreme Court denied Watson’s petition for rehearing and sent the case back down to the Court of Appeal. Watson subsequently asked the Court of Appeal to affirm summary judgment in its favor, despite the Supreme Court’s ruling. The Court of Appeal denied Watson’s repeated request on August 24, 2015, sending the case back to the Superior Court.

2016 Case Updates

On June 3, 2016, Defendants moved for summary judgment on the ground that Plaintiffs could not prove causation. Plaintiffs also moved for summary adjudication concerning many of Defendants’ affirmative defenses. On August 15, 2016, the court denied Defendants’ motion; it also granted Plaintiffs’ motion in its entirety.

While the summary judgment motions were pending, Plaintiffs entered a settlement agreement with Defendants Hoechst Marion Roussel, The Rugby Group, and Watson Laboratories. Defendants agreed to pay $100 million to resolve Plaintiffs’ claims. The court granted preliminary approval of the settlement on August 15, 2016, and set a hearing for final approval on October 7, 2016. More information about the settlement can be found here.

On September 1, 2016,the court held a hearing concerning several evidentiary and other matters. The court indicated that it would adopt its tentative ruling and deny Defendant’s Motion to Decertify the Class. The court also indicated that it would adopt its tentative ruling and exclude from trial evidence of subsequent patent litigation involving Bayer’s Cipro patent. Finally, the court indicated that it would also exclude evidence of certain procompetitive justifications that Barr might offer at trial. The court will hear several other evidentiary motions in October.

The case is currently proceeding against Barr, the lone remaining defendant. Trial is set for January 20, 2017.