Antitrust Law Daily Intuniv purchasers denied stay pending appeal petition on class certification denial
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Wednesday, June 10, 2020

Intuniv purchasers denied stay pending appeal petition on class certification denial

By Jeffrey May, J.D.

With a jury trial possibly starting as early as next month in the antitrust case and with a petition to the First Circuit still pending, indirect purchaser plaintiffs not entitled to a delay.

Consumers who purchased the brand or generic version of the attention deficit hyperactivity disorder (ADHD) treatment Intuniv were denied of a stay of further proceedings in an antitrust action challenging an anticompetitive patent litigation settlement agreement between Intuniv’s manufacturer—Shire—and generic equivalent maker Actavis pending consideration of their petition for an interlocutory appeal of a denial of class certification of indirect purchaser plaintiffs (IPPs). The IPPs failed to demonstrate that they were likely to succeed on appeal, even assuming that the appellate court granted their petition, or would suffer irreparable harm in the absence of a stay. With trial of the individual IPP claims and similar direct purchaser plaintiff (DPP) claims imminent, staying both actions or requiring the DPP action to go forward to be followed by the IPP action (as a class or otherwise) would be prejudicial to the defendants (Picone v. Shire LLC, June 8, 2020, Burroughs, A.).

The IPPs are parents and caretakers who bought the branded or generic versions of Intuniv, an extended release medication used to address ADHD, for their child’s or ward’s medical needs. They alleged in their complaint that Shire, which held three supposedly weak patents on Intuniv at the time, responded to Actavis’s filing of an Abbreviated New Drug Application (ANDA) for generic Intuniv in December 2009 by filing a patent infringement suit against the company and eventually several other ANDA filers. In August 2019, the federal district court in Boston denied the IPP's motion for certification of two consumer classes they sought to represent. The court noted that the large number of uninjured consumers necessitated individualized inquiries.

The IPPs moved for reconsideration, which the district court denied. They also filed the petition for an interlocutory appeal. The U.S. Court of Appeals has not yet ruled on the petition.

The IPPs’ case is scheduled for a jury trial along with the DPP action beginning in July. However, the trial is likely to be continued in light of the Covid-19 pandemic. Moreover, motions for summary judgment remain pending.

In denying the stay, the district court noted that the IPPs made no argument concerning the likelihood of their petition being granted by the appellate court. Even if the First Circuit allowed the appeal to go forward, that would still be insufficient to warrant a stay of the district court's proceedings, according to the district court.

As for irreparable harm, the district court was not satisfied with the IPPs’ argument that proceeding to trial with the individual claims in the case would result in the inefficient use of court and litigant resources. The individual plaintiffs had represented that they would go to trial even without the putative class. Moreover, the defendants would suffer harm if the direct purchaser action were to proceed on its own. The defendants argued that trying the IPPs’ claims separately would entail litigating many of the exact same issues, with largely the same roster of witnesses, twice. Alternatively, a stay of both actions would prejudice the defendants in other ways. Lastly, the court said that a stay was not supported by the IPP’s professed interest in conserving judicial resources.

The case is No. 1:16-cv-12396-ADB.

Attorneys: Allan Kanner (Allan Kanner & Associates) and Annemieke A. Tennis (Kanner & Whiteley, LLC) for Tina Picone and Shana Wright. David S. Shotlander (Frommer Lawrence & Haug LLLP) and David A. Zwally (Haug Partners LLLP) for Shire U.S. Inc. and Shire LLC. Aviv A. Zalcenstein (Goodwin Procter LLP) for Actavis Elizabeth LLC, Actavis Inc. and Actavis Holdco U.S., Inc.

Companies: Shire U.S. Inc.; Shire LLC; Actavis Elizabeth LLC; Actavis Inc.; Actavis Holdco U.S., Inc.

MainStory: TopStory Antitrust MassachusettsNews GCNNews

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