Endo prevails at trial over Opana purchasers' antitrust claims

3 minute read
Register now for FREE unlimited access to Reuters.com
  • Jury rejects claims that Endo made illegal deal with generic competitor
  • Company prevailed over similar claims by FTC in March

(Reuters) - A jury on Friday sided with drugmaker Endo International Plc against purchasers of its opioid painkiller Opana ER who had accused it of delaying the launch of a generic version of the drug through an illegal deal with a competitor.

The jury in Chicago federal court rejected claims by a class of purchasers that bought from Opana directly, led by drug wholesalers; a class of indirect purchasers, led by several employee health plans and Blue Cross and Blue Shield of Louisiana; and several individual retailers including Walgreens Boots Alliance and Kroger Co.

"Endo is very pleased with the jury's verdict and is grateful for its careful deliberation," Endo Chief Legal Officer Matthew Maletta said in a statement.

Register now for FREE unlimited access to Reuters.com

Lawyers for the plaintiffs did not immediately respond to requests for comment.

The litigation, which began in 2014, centers on a 2008 settlement between Endo and generic drugmaker Impax Laboratories, which is now owned by Amneal Pharmaceuticals.

Impax was originally a defendant as well but settled during trial.

Endo sued Impax in 2007 after the latter sought approval from the U.S. Food and Drug Administration to make generic Opana ER, saying the generic drug would infringe two Endo patents on controlled-release drug formulations. Both patents were set to expire in September 2013.

In 2010, with a trial underway, the two companies settled. Impax agreed not to launch generic Opana ER until January 2013.

Endo agreed to pay Impax if Opana ER sales dropped below a certain threshold by the time the generic version was launched. Opana ER sales did fall sharply because Endo largely switched to a new crush-resistant form of the drug in 2012, and Endo paid Impax about $102 million as a result.

The plaintiffs in the Chicago litigation said the settlement was an illegal "pay-for-delay" deal that violated the federal Sherman Act and state antitrust laws.

A Washington, D.C., federal judge in March dismissed similar claims against Endo by the U.S. Federal Trade Commission.

Endo pulled Opana from the market in 2017 at the request of the FDA over concerns about abuse. The drug has been the subject of lawsuits by local governments around the country that have accused Endo of fueling the opioid addiction epidemic. Since 2019, Endo has agreed to make $300 million in opioid settlement payments with state and local governments. The largest to date are a $65 million settlement with Florida and a $63 million settlement with Texas.

The case is In re Opana ER Antitrust Litigation, U.S. District Court, Northern District of Illinois, No. 14-cv-10150.

For direct purchaser class: Andrew Curley of Berger Montague and Bruce Gerstein of Garwin Gerstein & Fisher

For end-payor class: Gregory Asciolla of Labaton Sucharow and Michael Freed of Freed Kanner London & Millen

For Walgreens, Kroger, Safeway, HEB and Albertson's: Lauren Ravkind of Kenny Nachwalter

For Rite Aid and CVS: Barry Refsin of Hangley Aronchick Segal Pudlin & Schiller

For Endo: George Gordon of Dechert, Heidi Hubbard of Williams & Connolly and others

Read more:

Endo, Impax defeat FTC's latest antitrust case over opioid

Classes certified in Opana antitrust litigation

Register now for FREE unlimited access to Reuters.com

Our Standards: The Thomson Reuters Trust Principles.

Thomson Reuters

Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.