Impax’s $145 Million Antitrust Deal Nets $55 Million for Lawyers

Impax Laboratories Inc. is free of antitrust litigation led by a group of drug wholesalers and large retailers over its alleged scheme to delay generic versions of the painkiller Opana ER, after a federal judge in Chicago approved their $145 million settlement.

Judge Harry D. Leinenweber signed off Thursday on the agreement, which resolves class action claims brought against Impax—now part of Amneal Pharmaceuticals Inc.—by direct purchasers of Opana, an opioid. He also handed $50.5 million in legal fees and $4.3 million in expenses to counsel for the drug buyers.

Leinenweber, writing for the US District Court for the Northern District of Illinois, said the agreement is “in all respects fair, reasonable, and adequate.” The judge granted $150,000 service awards to the lead plaintiffs, Value Drug Co. and Meijer Inc.

The pact doesn’t reflect an admission of wrongdoing or liability, he noted. Impax has also reached a $15 million settlement with end payers—health plans and consumers—that’s awaiting Leinenweber’s approval.

The settlement ruling comes about six months after Impax disclosed mid-trial that it had reached tentative deals to exit the case. Its co-defendant, Endo International Plc, which manufactures Opana, later won a jury verdict.

The long-running antitrust lawsuit, filed in 2014, accused Endo of agreeing to drop a patent lawsuit against Impax and temporarily stay out of the eventual market for generic Opana in exchange for a pledge by Impax not to challenge its patents on the drug.

The deal also allegedly called for Endo to pay $102 million if it switched to a new Opana formulation that undercut Impax’s generic version. The patent settlement’s terms made it a “reverse payment,” the suit said.

Such agreements—so called because they involve concessions from a plaintiff to a defendant, rather than in the usual direction—were widely considered one of the lawful perks of holding a patent until a landmark 2013 ruling by the US Supreme Court opened them up to antitrust scrutiny.

The Impax case is part of a wave of litigation over reverse payments, also called “pay to delay” deals, that followed.

Berger Montague PC and Garwin Gerstein & Fisher LLP are lead counsel for the direct purchasers. Labaton Sucharow LLP and Freed Kanner London & Millen LLC are lead counsel for the end payers. Impax is represented by Kirkland & Ellis LLP. Endo is represented by Dechert LLP and Williams & Connolly LLP.

The case is In re Opana ER Antitrust Litig., N.D. Ill., No. 14-cv-10150, 11/3/22.