Mylan Settles EpiPen Price-Gouging Class Suit for $264 Million

EpiPen buyers leading a class action against various Mylan defendants are seeking Kansas federal court approval for a $264 million settlement that, together with a previous settlement with defendant Pfizer, brings their total recovery to $609 million.

The agreement is substantially similar to the court-approved Pfizer Inc. settlement, the group told the U.S. District Court for the District of Kansas on Monday.

It provides that Mylan NV initially will deposit $5 million into an escrow account, with the rest to be deposited by July 1 or five days before the fairness hearing, whichever occurs first, the group said. The settlement fund will pay for all administrative costs, including the expenses of notifying class members, it said.

There will be two pools of funds, one for individual buyers and one for third-party payers like insurers, the class said in a memorandum urging the court’s approval. Additionally, class counsel will ask the court for an award of attorneys’ fees of up to one-third of the settlement amount, plus interest and expenses, the agreement says.

The settlement is fair, adequate, and reasonable and was negotiated in good faith at arms’ length, the class plaintiffs say.

In 2016 and 2017, Mylan became the subject of multiple lawsuits after imposing huge hikes in prices for life-saving epinephrine auto-injectors. The prices caused a public uproar and led to charges that Mylan violated federal antitrust laws and the Racketeer Influenced and Corrupt Organizations Act.

The plaintiffs alleged Mylan, Pfizer, and others participated in wide-ranging schemes to interfere with proposed generic versions by bribing pharmacy benefit managers with massive secret rebates in exchange for favorable formulary placement.

The Kansas federal court lawsuits focused primarily on allegations that Mylan “traded” a settlement of its patent claims against Teva Pharmaceutical Industries Ltd. for a deal resolving an unrelated infringement case Teva had brought against Mylan.

Judge Daniel D. Crabtree in June 2021 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.

Robbins Geller Rudman & Dowd LLP, Keller Rohrback LLP, Sharp Law LLP, Pritzker Levine LLP, and Burns Charest LLP are co-lead counsel for the proposed class.

Mylan is represented by Hogan Lovells US LLP, Clark Hill PLC, and Lathrop Gage LLP.

The case is In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices & Antitrust Litig., D. Kan., No. 17-md-2785, motion for preliminary approval of settlement 2/28/22.