Opana ER Antitrust Litigation
In this antitrust class action, Berger Montague P.C. was named interim co-lead class counsel on behalf of a class of direct purchasers of brand or generic Opana ER 5, 10, 20, 30, and/or 40 mg tablets. Defendants are (a) Endo Health Solutions Inc., Endo Pharmaceuticals Inc., and Penwest Pharmaceuticals Co. (collectively, “Endo”) and (b) Impax Laboratories, Inc. (“Impax”). Plaintiffs allege that Defendants violated the Sherman Act when Endo and its generic competitor, Impax, entered into an anticompetitive reverse payment settlement agreement delaying generic competition for Opana ER (generic name: extended release oxymorphone hydrochloride). Plaintiffs are seeking overcharge damages incurred by the proposed class caused by Defendants’ misconduct.
About the case
In June 2010, the FDA was on the verge of approving Impax’s application to market a generic version of Opana ER. Rather than sell inexpensive generic Opana ER upon receiving FDA approval, Impax entered into an anticompetitive reverse payment agreement with Endo, the manufacturer of Opana ER. Plaintiffs allege that Endo paid Impax to stay out of the market for Opana ER until January 2013. Endo agreed not to launch an authorized generic version of Opana ER—a promise worth many millions of dollars to Impax. Endo also agreed that if the sales of Opana ER fell before Impax’s delayed launch, it would pay Impax cash calculated pursuant to a formula in the parties’ settlement agreement to compensate it for the diminution in the value of Endo’s promise not to launch an authorized generic. Plaintiffs allege that the payment from Endo to Impax pursuant to the settlement agreement delayed the entry of generic Opana ER, which allowed Endo to (a) charge anticompetitive prices, (b) switch the market from Opana ER to a modified formulation of Opana ER (“Opana ER CRF”), and (c) make sales of branded Opana ER and branded Opana ER CRF that otherwise would have been sales of cheaper generic Opana ER, thus causing class members to suffer overcharges on their purchases of brand and generic extended release oxymorphone hydrochloride products. Endo also compensated Impax for delaying the launch of its generic Opana ER product through a development agreement entered simultaneously with the settlement agreement.
The District Court denied Defendants’ motion to dismiss Plaintiffs’ claims on February 10, 2016. In re Opana ER Antitrust Litigation, 162 F.Supp.3d 704 (N.D. Ill. 2016). Discovery has closed and Plaintiffs have moved for class certification, which will be fully briefed by November.
LEAD ATTORNEYS: David F. Sorensen, Andrew C. Curley