Endo, Impax Beat Bid for Special Procedures at Antitrust Trial

Endo International Plc and Impax Laboratories LLC will face an ordinary class action trial over allegations they schemed to block generic versions of the painkiller Opana ER, a federal judge in Chicago ruled, denying a bid for separate trials of claims by direct and indirect purchasers.

Judge Harry D. Leinenweber rejected a motion by the Opana purchasers leading the case to establish ad hoc “trifurcated” trial proceedings in an effort to avoid prejudicing the claims of drug distributors with evidence that they passed on overcharges to end payers like consumers and health plans.

Leinenweber, writing for the U.S. District Court for the Northern District of Illinois, said it should be enough for him to issue ordinary jury instructions making clear that evidence of downstream overcharges is relevant only to the indirect purchaser case, not as a defense to the direct purchaser claims.

The request overlooked “the ability of jury instructions to regulate how and for what purpose the jury considers evidence,” the judge wrote. “The Federal Rules do not advise courts to draw an entirely new jury every time there is evidence which may only be considered for one purpose.”

Leading precedents from the U.S. Supreme Court state that a main aim of both bespoke trial mechanisms and traditional bifurcation—separating liability issues from damages calculations—is “to prevent long, complicated proceedings,” Leinenweiber noted in his ruling Thursday.

In that context, the “cure appears worse than the disease,” he wrote. “The proposed proceedings would appear to make a long, complicated proceeding more so instead of less.”

Endo and Impax, an Amneal Pharmaceuticals Inc. subsidiary, had opposed the request, referring to it as “artificial gerrymandering.”

The long-running antitrust lawsuit, filed in 2014, accuses 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.

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.

A trial of those claims was originally scheduled for Nov. 1, but it was delayed when a federal appeals court in July ordered Leinenweber to revisit part of his ruling certifying the case as a class action. The judge issued a new decision a month later restoring class action status to that part of the case.

No new trial date appears to have been set, according to the court docket.

Endo is represented by Dechert LLP and Williams & Connolly LLP. Impax is represented by Kirkland & Ellis LLP. The direct purchasers are represented by Garwin Gerstein & Fisher LLP and Berger Montague PC.

The end payers are represented by Labaton Sucharow LLP and Freed Kanner London & Millen LLC. Certain major retailers are represented by Hangley Aronchick Segal Pudlin & Schiller and Kenny Nachwalter PA.

The case is In re Opana ER Antitrust Litig., N.D. Ill., No. 14-cv-10150, 4/21/22.