On Wednesday, February 8, 2017 the U.S. Court of Appeals for the Second Circuit partially vacated the dismissal of the pay-for-delay class action claim by purchasers of the diabetes drug Actos. The case, In Re: Actos End Payor Antitrust Litigation, alleges that the brand drug’s manufacturer Takeda Pharmaceuticals is responsible for delaying generic competition by misrepresenting and mischaracterizing the nature of two of its patents to the U.S. Food and Drug Administration.
The appeals court said that the Plaintiffs plausibly alleged that Takeda delayed generic rival Teva’s entry to the market, but not that of other generic manufacturers. The three-judge panel ruled that Plaintiffs had adequately alleged facts supporting their theory of causation against Teva, but found that Plaintiffs had not pled facts that supported their theory of causation against the other generic manufacturers.
“Unlike plaintiffs’ first theory of causation, this second theory does not depend on Teva’s knowledge of Takeda’s description of its patents as drug product patents,” U.S. District Judge Jed S. Rakoff, sitting by designation, wrote in the court’s opinion. “This theory of causation is highly plausible.”
Plaintiffs in this case are represented by Kenneth A. Wexler, Justin N. Boley, and Kara A. Elgersma of Wexler Wallace LLP, Jayne Arnold Goldstein of Shepherd, Finkelman, Miller & Shah, LLP, and Steve D. Shadowen of Hilliard & Shadowen LLP.