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Competition Group Of The Year: Cohen Milstein – Law360

February 7, 2023

Cohen Milstein Sellers & Toll PLLC worked on hundreds of millions of dollars worth of settlements for drug buyers, chicken consumers and poultry plant workers in the past year, marking the firm as one of Law360’s 2022 Competition Groups of the Year.

Cohen Milstein was one of the firms that successfully negotiated a $485 million settlement, thus resolving multidistrict antitrust claims accusing Ranbaxy Pharmaceuticals of improperly acquiring exclusivity periods for the antiviral drug Valcyte, high blood pressure drug Diovan and reflux medication Nexium, which set back the launch of generic versions and maintained inflated prices.

“It’s a tremendous settlement on behalf of two different classes,” Cohen Milstein antitrust partner Sharon K. Robertson said.

Cohen Milstein represented direct purchasers like wholesalers who, along with end-payer plaintiffs including health care plans, received final approval for the deal in September. However, U.S. District Judge Nathaniel M. Gorton reduced the attorneys’ initial $133 million request by about 27% to approximately $97 million, because the slice of the “megafund” they were seeking wasn’t on par with fee awards in similar cases.

Robertson argued the case is helping push “systemic change” in pharmaceuticals, a major goal of Cohen Milstein’s litigation in the industry, by discouraging settlements between drugmakers of the kind alleged here to be anti-competitive.

She pointed specifically to a reduction in a kind of settlement resolving patent infringement litigation that brand drugmakers file against would-be generics rivals, in which the brand drugmakers agree not to market their own “authorized generic” during an initial period of exclusivity enjoyed by the first generic drugmaker to file an application with the U.S. Food and Drug Administration.

So-called pay-for-delay or reverse payment litigation targeting deals staving off generic competition have gotten a major boost from the U.S. Supreme Court’s landmark 2012 Actavis decision holding such agreements to be anti-competitive under the right circumstances. But Robertson noted that the Federal Trade Commission tracked a dramatic drop in no-authorized generic and similar settlements years after Actavis.

“I think that that’s in no small part due to private plaintiffs pursuing these types of cases and demonstrating through these cases that this type of conduct is in fact anti-competitive,” Robertson said. “It makes these defendants change the way that they behave and how they settle cases going forward.”

Cohen Milstein has also scored key wins representing end-consumer plaintiffs alongside Hagens Berman Sobol Shapiro LLP in a sprawling antitrust lawsuit alleging more than a dozen major broiler chicken producers, including Sanderson Farms Inc. and Perdue Foods, conspired to limit chicken production to boost prices.

The case, currently bound for an initial trial in September, has seen a number of settlements, including consumer deals with Fieldale Farms, Peco Foods, George’s, Tyson Foods, Pilgrim’s Pride and Mar-Jac Poultry totaling $181 million that received final approval in December 2021. Consumers also scored a major victory over remaining producers in May when U.S. District Judge Thomas M. Durkin granted them, both indirect buyers and direct purchasers, class certification.

The $181 million in consumer settlements, according to antitrust practice co-chair Brent W. Johnson, is “a credit to a great collaboration” with Hagens Berman and with counsel for the other classes.

In addition to case-specific strategy, Johnson said the successes come mainly from the firm’s usual approach that includes “large, well-integrated, cohesive teams … that are able to prosecute a case against 18 defendant processors who all have slightly different stories, a ton of facts, take 180 depositions across the case and handle massive efforts to get the class certified.”

Johnson noted that one of the things that sets the case apart is its sheer size. “Its breadth in terms of how many people have actually bought the relevant product is unmatched,” he said.

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