Aggrenox Pricing Class Action Lawsuits Combined by JPML

Eleven antitrust class action lawsuits relating to anticompetitive conduct in the market for Aggrenox, a drug manufactured by Boehringer Ingelheim Pharmaceuticals Inc. that reduces the risk of stroke, were combined by the U.S. Judicial Panel on Multidistrict Litigation (JPML) last week.

Boehringer, the company that manufactures the band name drug, Aggrenox, along with a number of distributors, were accused of allegedly excluding generic drug companies from selling a generic version of the anti-stroke drug. The plaintiffs, including American Sales Company LLC, a drug distributor, as well as worker’s health and welfare funds, allege that Boehringer engaged in a pay-for-delay agreement with Teva to keep the pharmaceutical company from developing a generic version of the drug that would compete with Aggrenox’s profits. The JPML summarized, “These actions are purported nationwide class actions alleging that defendants excluded generic competition for Aggrenox, in violation of federal and state antitrust laws, by entering into a reverse payment and co-promotion agreement in which Boehringer agreed to pay the Barr defendants substantial sums in exchange for delaying entry of a less expensive generic version of Aggrenox into the market and for the promotion of Aggrenox to obstetricians and gynecologists.”

The parties agreed to combine the Aggrenox pricing class action lawsuits, but disagreed on the appropriate venue with cases pending in the District of Connecticut, the Eastern District of Pennsylvania and the Middle District of Tennessee. The JPML ruled to combine the cases in Connecticut because “the District of Connecticut will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.” The JPML also noted, “The parties have notified the Panel of twelve additional related actions pending in the District of Connecticut, the District of Minnesota, the District of New Jersey, the Eastern District of Pennsylvania. These actions and any other related actions are potential tag-along actions.”

Boehringer received U.S. Food & Drug Administration approval for the anti-stroke drug in 1998 and enjoyed success to the tune of $366 million in sales in the United States, according to the class action lawsuits. In 2007, another pharmaceutical company, Barr Pharmaceuticals, later acquired by Teva Pharmaceuticals Industries Ltd., attempted to introduce a generic version of the drug. Boehringer filed a patent infringement lawsuit against the company and, according to the plaintiffs, Boehringer agreed to pay Barr $120 million to delay the introduction of a generic version of Aggrenox until 2015. The plaintiffs also allege that Barr was granted a license by Boehringer to sell an authorized generic version of Aggrenox under Boehringer’s New Drug Application. The plaintiffs also allege that, as a part of the agreement to promote Aggrenox to health professionals, Boehringer trained a specialty sales force of Barr subsidiary Duramed Pharmaceuticals Inc., now known as Teva Women’s Health.

American Sales is represented by Gerald C. Pia Jr. and Brian C. Roche of Roche Pia LLC and Thomas M. Sobol, David S. Nalven and Edward Notargiacomo of Hagens Berman Sobol Shapiro LLP.

The Aggrenox Pricing Class Action Lawsuit is In re: Aggrenox Antitrust Litigation, MDL No. 2516, in the U.S. District Court for the District of Connecticut.