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Merck, Glenmark Antitrust MDL Must Go to Jury, Judge Says


September 7, 2022

A Virginia magistrate judge has recommended denying Merck and Glenmark’s bids to end antitrust multidistrict litigation accusing the drugmakers of conspiring to delay generic competition for the branded cholesterol medication Zetia, finding there are numerous material factual disputes that should go to a jury.

In a 74-page report filed Friday, U.S. Magistrate Judge Douglas E. Miller recommended that the district judge overseeing the case deny requests by Merck & Co. and Glenmark Pharmaceuticals Ltd. for summary judgment wins on all antitrust claims.

Judge Miller reasoned that there are multiple material factual disputes over Merck and Glenmark’s $9 million patent litigation settlement in 2010, including the deal’s value and whether the settlement contained an anticompetitive “no-AG provision” limiting the rollout of the authorized generic drug.

The judge said there are also factual disputes over whether Glenmark had the manufacturing ability to launch the generic version of Zetia at the time the deal was made, and there’s a dispute over whether Glenmark would have entered the market sooner if Merck’s drug patents had been invalidated.

“Plaintiffs have established triable issues regarding the existence of a no-AG agreement; the value of that agreement; and the connection between that agreement and Merck’s avoidance of at least some risk of generic competition,” the report says. “Under Rule 56 [of Federal Rules of Civil Procedure], this is sufficient to allow plaintiffs’ claims to proceed to trial.”

The magistrate’s recommendation is the latest chapter in a sprawling MDL filed by direct buyers, end-payors and retailers in 2018, accusing the companies of entering an anticompetitive deal in 2010 to delay generic forms of Zetia by artificially prolonging its patent protection.

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The plaintiffs are represented by Glasser and Glasser PLC, Hagens Berman Sobol Shapiro LLP, Radice Law Firm PC, Hilliard Shadowen LLP, Sperling & Slater PC, Kessler Topaz Meltzer & Check LLP, Roberts Law Firm PA, Cohen Milstein Sellers & Toll PLLC, Miller Shah LLP, Nussbaum Law Group PC, Faruqi & Faruqi LLP, Berger Montague, Taus Cebulash & Landau LLP, Furniss Davis Rashkind and Saunders PC, Motley Rice LLC, Miller Law LLC, Wolcott Rivers Gates PC, Kenny Nachwalter PA and Hangley Aronchick Segal Pudlin & Schiller.

Read the article on Law360.