In re Loestrin 24 Fe Antitrust Lawsuit
David F. Sorensen led Berger Montague’s team as co-lead class counsel in a challenge to an alleged pay-for-delay deal and other anticompetitive conduct that hindered generic competition for Warner Chilcott’s prescription birth control medication Loestrin 24 Fe.
Plaintiffs alleged that Warner Chilcott and its would-be generic competitors entered an unlawful pay-for-delay agreement and that Warner Chilcott also engaged in patent fraud and an unlawful “product hop” that prevented purchasers from benefiting from earlier, unconstrained, lower-priced generic competition.
About the case
On September 4, 2014, the district court granted defendants’ motion to dismiss. Plaintiffs appealed that decision to the United States Court of Appeals for the First Circuit. The Court of Appeals held oral argument in December 2015 at which the Federal Trade Commission also appeared and argued in support of the plaintiffs. Additionally, the Federal Trade Commission, nearly 30 states, several public interest groups, and various major retailers filed amicus briefs in support of the plaintiffs.
On February 22, 2016, the Court of Appeals vacated the district court’s dismissal and remanded the case for further proceedings. On July 2, 2019, U.S. District Judge William E. Smith granted class certification. The case settled for $120 million soon before trial was scheduled to start, and the $120 million settlement received preliminary approval on January 14, 2020. The settlement received final approval on August 27, 2020. During the final approval hearing, Judge Smith stated:
The degree to which you all litigated the case is — you know, I can’t imagine attorneys litigating a case more rigorously than you all did in this case. It seems like every conceivable, legitimate, substantive dispute that could have been fought over was fought over to the max. So you, both sides, I think litigated the case as vigorously as any group of attorneys could. The level of representation of all parties in terms of the sophistication of counsel was, in my view, of the highest levels. I can’t imagine a case in which there was really a higher quality of representation across the board than this one.