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Ankur Kapoor, Rosa Morales, Oct 29, 2014
As the first reverse-payment antitrust case to go to a jury since the watershed U.S. Supreme Court case, FTC v. Actavis—indeed, the first such case to be tried, ever— In re Nexium (Esomeprazole) Antitrust Litigation promises to help map the U.S. legal landscape left largely unexplored by the Supreme Court in Actavis concerning the antitrust analysis of reverse-payment settlements. A reverse-payment agreement settles a patent-infringement suit between a pharmaceutical patent-holder and a would-be generic drug competitor, with the generic agreeing not to launch its allegedly infringing product for some period of time before patent expiration in exchange for some payment by the patent holder (instead of the allegedly infringing generic paying the patentee for damages, hence the term “reverse payment”).
Nexium was brought by groups of direct purchasers, end payors (health plans and consumers), and individual retailers (“Plaintiffs”) against AstraZeneca, Teva Pharmaceutical Industries, Inc., Dr. Reddy’s Laboratories Ltd., and Ranbaxy, Inc. (“Defendants”). Plaintiffs alleged anticompetitive reverse-payment settlements of patent litigation between AstraZeneca and each of the generics, as well as an overarching conspiracy among all Defendants, to delay the launch of generic competition to AstraZeneca’s super-blockbuster acid-reflux drug Nexium.