Mylan Investors’ Claims in EpiPen Suit Move Forward

“Mylan Gets Some Parts of Investors’ EpiPen Suit Trimmed,” Law360

After trimming some claims and statements, a New York federal judge said Friday that he would not dismiss all of the new claims in an amended investor suit against Mylan NV over allegedly anti-competitive behavior involving its EpiPen epinephrine auto-injector.

After U.S. District Judge J. Paul Oetken found issues with claims in the proposed securities class action a year ago, investors came back to the court the following July with a beefed-up complaint and fresh allegations, including that Mylan offered massive rebates on EpiPens conditioned on an exclusion of a competitor's products.

The rebate scheme was adequately alleged to have blocked the competitor from the market for auto-injectors and can now be pointed to as an omission that misled investors, the judge said, although he also found that new allegations about price-fixing agreements for three of Mylan's generic drugs were flimsily based on a single phone call.

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Mylan's EpiPen has been the subject of a $465 million settlement, a federal probe, antitrust suits and criticism by U.S. lawmakers, and in October 2016 was hit with the first version of a securities suit claiming its omissions about allegedly anti-competitive conduct hurt investors.

Judge Oetken ruled exactly one year ago that the investors' first amended complaint adequately pled that Mylan reached price-fixing agreements involving five of its generic drugs and misclassified the EpiPen as a generic drug in an attempt to pay lower rebates under the Medicaid Drug Rebate Program, thus allowing securities claims based on those allegations to move forward.

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The investors are represented by Jeremy A. Lieberman and Austin P. Van of Pomerantz LLP, Steven J. Toll, Daniel S. Sommers and Laura Posner of Cohen Milstein Sellers & Toll PLLC, and Jacob Sabo of the Law Office of Jacob Sabo.

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