Merck to Settle K-Dur Pay-For-Delay Class Action Lawsuit

Merck & Co. Inc. and Upsher-Smith Laboratories Inc. have reportedly agreed to settle a long-running antitrust class action lawsuit alleging they engaged in a pay-for-delay scheme over the K-Dur potassium supplement.

If approved, this proposed class action settlement would resolve allegations that Merck, Upshur-Smith, and a unit of Baxter International Inc. delayed the release of generic versions of K-Dur 20, a treatment for patients with potassium deficiencies.

Several drug retailers, including Walgreen Co., Rite Aid Corp and CVS Pharmacy Inc., accused the drug makers of entering an agreement to delay the entry of cheaper generic versions of K-Dur 20 until the fall of 2001. This delay kept the price of the name-brand version artificially high, which the plaintiffs assert is a violation of the Sherman Act.

The K-Dur pay for delay class action lawsuit has been consolidated in New Jersey federal court and is titled In re: K-Dur Antitrust Litigation.

The defendants have vigorously fought against the K-Dur pay-for-delay class action lawsuit.

Last month, the drug manufacturers asked a judge to grant summary judgment in their favor, citing a recent decision by the 3rd U.S. Circuit Court of Appeals over the acne medication Doryx. The appellate court reportedly found that the makers of the generic drugs failed to establish that Warner Chilcott Ltd.’s market power in the relevant market was insufficient, and that Mylan Pharmaceuticals provided a definition of the market that was too narrow.

In the K-Dur antitrust class action lawsuit, the plaintiffs argued that the relevant market consisted of K-Dur and its generic versions. The defendants claimed that K-Dur’s share of prescription oral potassium chloride supplements was only about one-third under a broader market, and asserted that “such a low market share is insufficient to infer market power.”

Terms of the proposed K-Dur pay-for-delay settlement have not been disclosed.

Top Class Actions will post updates to this K-Dur class action settlement as they become available. For the latest updates, keep checking TopClassActions.com or sign up for our free newsletter. You can also receive notifications when this article is updated by using your free Top Class Actions account and clicking the green “Follow Article” button at the top of the post.

The plaintiffs are represented by Deborah S. Corbishley of Kenny Nachwalter PA, Barry L. Refsin of Hangley Aronchick Segal Pudlin & Schiller, Scott E. Perwin and Lauren C. Ravkind of Kenny Nachwalter PA, Peter Pearlman of Cohn Lifland Pearlman Herrmann & Knopf LLP,  David F. Sorensen of Berger & Montague PC and Bruce E. Gerstein, Joseph Opper and Kimberly Hennings of Garwin Gerstein & Fisher LLP.

The Merck K-Dur Pay-For-Delay Class Action Lawsuit is Hip Health Plan Of F, et al. v. Schering-Plough, et al., case number 2:01-cv-01652, in the U.S. District Court for the District of New Jersey. The MDL is In re: K-Dur Antitrust Litigation, MDL No. 1419, in the U.S. District Court for the District of New Jersey.