As reported in Law360 (subscription), plaintiffs represented by Lieff Cabraser and co-counsel were successful in defeating defendant drug companies’ attempts to get their state-based consumer fraud claims thrown out of the large-scale multidistrict aggregate litigation alleging collusion on a national level in the pricing of a significant group of generic drugs, including clobetasol, clomipramine and pravastatin.

The judge in federal court in Pennsylvania rejected defendants’ arguments that plaintiffs’ unjust enrichment and other consumer protection against them should be dismissed due to “intervening authority” as claimed by the defendants. The multitude of cases, which have been in the courts since 2016, include actions against Mylan NV, Actavis PLC, Novartis unit Sandoz Inc. and Teva Pharmaceuticals USA Inc., who have been accused of working together to fix the prices of multiple dozens of generic drugs. The complaints include allegations that for some of the drugs, “the anti-competitive behavior drove up the price of [the] drugs tenfold” to the detriment of direct buyers, resellers, and ultimately consumers.

“Notwithstanding defendants’ citation to intervening authority, the court’s earlier ruling was not ‘clearly erroneous’ and no ‘supervening new law’ has cast doubt on it,” opined District Judge Cythia M. Rufe. The judge also noted the court already ruled on a previous motion to dismiss most of the claims being challenged in the current dismissal motion. Notably, the U.S. Department of Justice has also been pursuing a separate criminal probe against the manufacturers.

Arguments in the joint motion seeking to dismiss claims under Florida, New Jersey, and Massachusetts law were similarly rejected, and Judge Rufe further declined to remove any of the 40 unjust enrichment claims brought under the laws of 40 states and authorities, noting that, “Defendants’ first two arguments merit little discussion…, In its February 2019 opinion, the court addressed these arguments at length and found them unconvincing.” The judge further stated, “Just as they failed to do with respect to [the end-payor plaintiffs’] AUTCPCA claims, defendants have not identified any supervening authority that requires the court to dismiss the challenged unjust-enrichment claims. Consequently, the court declines to revise its earlier decision and will allow these claims to proceed.”

Visit this page for more information on the sprawling generic drugs antitrust litigation.

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