Consumers and insurers leading price-gouging litigation over the EpiPen, a treatment for life-threatening allergic reactions, won preliminary approval from a federal judge in Kansas for their $264 million settlement with affiliates of
Judge Daniel D. Crabtree tentatively signed off March 11 on the deal, which would resolve class action antitrust claims brought against Mylan in the U.S. District Court for the District of Kansas of behalf of “end payers” like insurers, pension funds, and consumers. He set a final fairness hearing for July 6.
The agreement broadly resembles a $345 million pact with
The settlements don’t directly affect a parallel proposed class action proceeding in a federal court in Minneapolis with claims on behalf of “direct purchasers” like drug distributors.
The EpiPen lawsuits, which began after a public uproar over huge price hikes in 2016, initially alleged wide-ranging schemes to interfere with proposed generic epinephrine auto-injectors by bribing pharmacy benefit managers with massive secret rebates.
The Minnesota case still involves those claims. But the Kansas lawsuit has narrowed its focus to allegations that Mylan “traded” a settlement of its patent claims against
Crabtree in June advanced claims that Mylan “paid” Teva to shelve its generic EpiPen by giving it suspiciously favorable terms in the other settlement the companies reached the same day.
If true, the judge said, the allegations establish the sort of “reverse payment” deal—so called because it involves concessions from a plaintiff to a defendant, rather than in the usual direction—that has faced antitrust scrutiny since a landmark 2013 decision by the U.S. Supreme Court.
Mylan also recently dodged antitrust claims by rival
Pfizer late last year spun off its generics business, Upjohn, and merged it with Mylan to form Viatris Inc.
Robbins Geller Rudman & Dowd LLP, Keller Rohrback LLP, Sharp Law LLP, Pritzker Levine LLP, and Burns Charest LLP are co-lead counsel for the plaintiffs. Mylan is represented by Hogan Lovells US LLP and Lathrop GPM.
The case is In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices & Antitrust Litig., D. Kan., No. 17-md-2785, 3/11/22.