First Circuit Revives Loestrin Pay-For-Delay Lawsuit
February 25, 2016
On February 25, 2016, the First Circuit Court of Appeals revived claims by a proposed class of direct and end-payor purchasers against Warner Chilcott and Watson for conspiring to delay generic entry of Loestrin 24 FE. The decision reverses the lower court’s ruling dismissing Plaintiffs’ claims based on the lack of a cash payment. In vacating and remanding, the First Circuit held that "Antitrust scrutiny attaches not only to pure cash reverse payments, but to other forms of reverse payment that induce the generic to abandon a patent challenge, which unreasonably eliminates competition at the expense of consumers." The Court went on to reiterate that “this approach is consistent with antitrust law, which has consistently prioritized substance over form." Cohen Milstein serves as Co-Lead Counsel to the Proposed End-Payor Class.