On October 13, 2020, Judge Lewis J. Liman for the United States District Court for the Southern District of New York appointed as Interim Co-Lead Class Counsel for End-Payor Plaintiffs, Sharon K. Robertson of Cohen Milstein to oversee the consolidation of related lawsuits pending before the Court relating to allegations that Defendants engaged in an illegal scheme to delay competition in the United States and its territories from generic versions of Bystolic®, a prescription medication containing the active pharmaceutical ingredient nebivolol hydrochloride and approved by the U.S. Food and Drug Administration (“FDA”) for the treatment of hypertension.

Case Background

Direct Purchaser and Indirect Purchaser or “End-Payor” Plaintiffs seek to recover damages arising from Forest Laboratories Inc., now a part of AbbVie, allegedly unlawful agreements with more than a dozen pharmaceutical generic manufacturers (“Settling Generics”) not to compete in the market for Bystolic in the United States and its territories.

Bystolic is a beta blocker. It blocks the effects of the hormone epinephrine, thereby causing the heart to beat more slowly and with less force, which in turn lowers blood pressure.

In December 2011—as soon as it was possible to do so—seven of these generic drug companies filed applications for FDA approval of generic versions of Bystolic. In March 2012, Forest Laboratories sued them for infringement of U.S. Patent No. 6,545,040 (the “‘040 patent”). Each generic company contended that its generic would not infringe Forest’s asserted patent claims or that the claims were invalid.

Plaintiffs allege that the generic companies’ position in the patent litigation was very strong and that either their products did not infringe the ‘040 patent, or the ‘040 patent was invalid.

Nonetheless, between October 2012 and November 2013, Forest entered into settlement agreements with each of the Settling Generics, each of which required the Settling Generics to defer the launch of their generic Bystolic products until September 2021only three months before the expiration of the ‘040 patent.

In 2019, the reason that Forest was able to forestall competition for so long was revealed: these settlement agreements included large, unjustified payments to the Settling Generics in exchange for the Settling Generics’ agreements not to compete in the market for Bystolic. According to documents in connection with Forest’s Merger Agreement with Actavis, which became public in March 2019 in the course of a different lawsuit involving Forrest. Forest’s settlement agreements required Forest to pay at least $15 million to each generic company after February 2014—to say nothing of what Forest may have already paid the Settling Generics—and included side deals and reimbursement of the Settling Generics’ litigation costs.

Four of the Settling Generics obtained approval of their generic Bystolic products in 2015, and two obtained approval thereafter. In June 2015, the last patent protecting Bystolic (other than the ‘040 patent) expired. It is asserted that the only reason that generic Bystolic did not enter the market in 2015 is Forest’s unlawful pay-for-delay settlement with each Settling Generic. Due to these settlements, purchasers allege they must pay higher prices for brand Bystolic until September 17, 2021.

Case name: In re Bystolic Antitrust Litigation, Case No. 20-cv-5538, 7352, 5735,7110, 5837, 5813, 7492, 5826, 7309, 5735, 5813, 5901, 5826, 6769, 7177, 6647, 7296, 7304 (S.D.N.Y.)