Judge Cynthia M. Rufe let the lawsuit move forward Tuesday with claims of an “overarching conspiracy” among the drugmakers to fix the price of 80 different skin treatments. The dispute is part of a broader multidistrict case targeting virtually the entire generic drug sector.
If true, the allegations show the companies used coded language about giving each one its “fair share” of the market to mask “actions against self-interest in the form of pricing and bidding decisions that would be irrational in a competitive market,” the judge wrote.
The dispute is part of a multidistrict litigation that began in 2016 with allegations about two specific generic drugs. The broader case now involves hundreds of medications, dozens of drugmakers, and scores of plaintiffs, including consumers, large health care companies, and 47 states.
Rufe has by turns narrowed the suits and rebuffed requests to scale them back. Last year she let major drug distributors out of the case and dismissed counts seeking disgorgement of profits, but the judge has also largely resisted chopping up the “overarching conspiracy” theory into drug-specific claims.
The ruling Tuesday fit that pattern. Rufe, writing for the US District for the Eastern District of Pennsylvania, rejected defenses asserted by Mylan, Pfizer, two industry executives, and five other drugmakers that argued they’d only even sold one or two of the products at issue in the case.
Even if each of the companies was directly involved with only one drug, they were all so entangled with one another that it’s plausible they knew “they would need to enter into future agreements with other combinations of would-be competitors,” the judge said.
They “therefore had a vested interest in playing fair according to their shared code of conduct,” she wrote.
Rufe also declined to rule the case untimely. Although the companies insist any violations ended more than four years before the states filed suit, it’s too early to say “what a particular polity knew or should have known,” given allegations that the drugmakers covered up the scheme, the judge said.
The case is In re Generic Pharms. Pricing Antitrust Litig., E.D. Pa., No. 16-md-2724, 2/27/23.
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