Law360 reports on Hilliard & Shadowen's victory over defendants' statute of limitations motion for summary judgment in Nexium case:
By Jeff Sistrunk
Law360, Los Angeles (November 27, 2013, 10:13 PM ET) -- A Massachusetts federal judge on Wednesday rejected AstraZeneca PLC and Ranbaxy Inc.'s bid to dismiss as time-barred certain claims in multidistrict litigation alleging the companies violated antitrust laws by agreeing to delay entry of a generic version of AstraZeneca’s heartburn drug Nexium.
U.S. District Judge William G. Young denied AstraZeneca and generics manufacturer Ranbaxy's motion for partial summary judgment on claims relating to Ranbaxy's alleged exclusion from the market because of a settlement agreement between the two companies, saying the plaintiffs have presented evidence supporting their position that the statute of limitations on those claims didn't start to run when the agreement was executed in April 2008.
Rather, the judge said, it is possible the plaintiffs' claims didn't accrue until August 2008, when Ranbaxy would have hypothetically launched a generic version of Nexium absent a settlement with AstraZeneca.
The end-buyer and direct purchaser plaintiffs filed their antitrust lawsuits Aug. 24 and 27, 2012, according to court documents.
AstraZeneca and Ranbaxy had argued Ranbaxy’s alleged exclusion from the market because of a settlement between the two companies over patent infringement happened more than four years before the first suit was filed and that the continuing-violation exception to the statute of limitations does not apply.
"AstraZeneca respectfully disagrees with the court’s decision," the company said in a statement Wednesday. "AstraZeneca firmly believes that plaintiffs’ allegations are without merit and we will continue to vigorously defend this litigation. AstraZeneca is confident that our settlement agreements fully comply with applicable law."
A Ranbaxy representative did not immediately respond to a request for comment late Wednesday.
While it is undisputed that the AstraZeneca-Ranbaxy settlement agreement was executed on April 14, 2008, the plaintiffs' expert posited that Ranbaxy would not have launched a generic Nexium product until August 2008, citing regulatory and manufacturing reasons, the judge's order said. Ranbaxy's introduction of a generic would have triggered competitive market prices along with the possible entry of other generics, Judge Young wrote.
"Under governing law, this 'but-for' date of generic entry would be when the plaintiffs' antitrust claims would accrue, as overcharges would first be incurred upon this date," the judge wrote.
"Despite the speculative nature of evidence presented by the plaintiffs in their sealed filings, this court draws all reasonable inferences to the nonmoving party to conclude that the plaintiffs' claims accrued within the four-year statute of limitation by the conclusion of August 2008," Judge Young continued.
Judge Young on Nov. 14 certified a class of Nexium end-payors who accused AstraZeneca and generics makers Ranbaxy, Teva Pharmaceutical Industries Ltd. and Dr. Reddy's Laboratories Ltd. of violating antitrust laws by entering into agreements to delay the entry of generic Nexium products.
The judge certified a damages class consisting of an unidentified number of individual consumers, third-party payors, union plan sponsors and insurance companies that bought or provided reimbursements for Nexium in more than 20 states and the District of Columbia. The class period will last from April 14, 2008, until the alleged anti-competitive effects of the companies' unlawful conduct end, the judge said.
With Wednesday's order, Judge Young also allowed the end-payors class to challenge the AstraZeneca-Ranbaxy agreement under the laws of 25 states listed in the class definition, modifying his earlier order limited them to Maine, Vermont and Wisconsin.
Judge Young has yet to rule on class certification for the class of direct purchasers. The trial is due to begin in March.
The plaintiffs are represented by Berman DeValerio Dahlman & Gross LLP, Hilliard & Shadowen LLC, Cohen Milstein Sellers & Toll PLLC, Wexler Wallace LLP, Berger & Montague PC, Taus Cebulash & Landau LLP, Carella Byrne Cecchi Olsteain Brody & Agnello PC and Hagens Berman Sobol Shapiro LLP, among others.
AstraZeneca is represented by Covington & Burling LLP, Williams & Connolly LLP and McCarter & English LLP. Ranbaxy is represented by Venable LLP and Minerva Law PC. Teva is represented by Mintz Levin Cohn Ferris Glovsky & Popeo PC. Dr. Reddy’s is represented by Budd Larner PC.
The case is In re: Nexium (Esomeprazole) Products Liability Litigation, case number 1:12-md-02409, in U.S. District Court for the District of Massachusetts.
--Additional reporting by Michael Lipkin and Kurt Orzeck. Editing by Chris Yates.