On Friday, September 27, 2019, a Pennsylvania federal judge certified two classes of plaintiffs in an antitrust lawsuit concerning an alleged product-hopping scheme with the opioid treatment drug Suboxone.
U.S. District Judge Mitchell Goldberg certified a class of direct purchasers of Suboxone, as well as a class of end-payors, in the multidistrict litigation against manufacturer Indivior PLC. The lawsuit, In Re: Suboxone Antitrust Litigation, alleges that Indivior engaged in an illegal product hopping scheme to prevent generic versions of Suboxone from coming to market.
In explaining his decision, Judge Goldberg asserted that the claims by the wholesalers and end-payors center on the “common question” of whether Indivior’s actions had a “legitimate business justification” or whether they were anti-competitive.
“Put another way, if each class member were required to pursue its claims individually, each class member would have to prove the same antitrust violations using the same evidence,” the judge said.
Plaintiffs in the case allege that approximately two years before generic competition for the Suboxone tablet was slated to begin, Reckitt (the company that Indivior was spun off from) began developing a different Suboxone formulation—an oral film—with the intention of destroying the market that existed for its original tablet product before generic competition could set in. Plaintiffs further allege that Reckitt filed sham citizen petitions with the Food and Drug Administration (FDA) to sabotage the FDA’s Abbreviated New Drug Application process for approving generic alternatives in order to further delay generic entry and buy time to convert consumers from the tablet to the film.
The complaint alleges that, absent Reckitt’s conduct, much cheaper generic versions of Suboxone would have been available to consumers almost four years earlier. A generic tablet form version of the drug finally arrived on the market in 2013, however plaintiffs say the damage has already been done and Indivior has established a market stranglehold.
End-payors in the case are represented by Kenneth A. Wexler and Justin Boley of Wexler Wallace LLP