RE: Indivior Wants Class Tossed From Suboxone Antitrust Case18 May 2023 07:13
Indivior Wants Class Tossed From Suboxone Antitrust Case
By Piper Hudspeth Blackburn
Law360 (May 11, 2023, 6:05 PM EDT) -- Indivior urged a Pennsylvania federal court on Thursday to dismiss a class of end payors from a case accusing the company of monopolizing the market for the opioid addiction treatment Suboxone, arguing the end payors have never demonstrated how they "suffered any harm" from the alleged violations.
In a motion to dismiss, the Virginia-based pharmaceutical company also asked U.S. District Judge Mitchell Goldberg to decertify the end-payor class if he didn't dismiss the suit outright. According to Indivior, certification should be reconsidered because it occurred before the Third Circuit's 2021 ruling in Russell v. Education Commission for Foreign Medical Graduates, "which changed the law on class certification."
In that case, the court held that in cases where a class is certified to collectively address only some issues before individually handling other issues, they have to satisfy the typical rules of civil procedure and consider a list of nine factors the Third Circuit had laid out in 2011 in Gates v. Rohm & Haas Co.
"This court must revisit its class certification decision prior to trial; because that decision predated Russell, it did not conduct Russell's required analysis," the motion stated.
The plaintiffs, which consist of direct purchasers, end payors and a group of state attorneys general, have claimed that Indivior, formerly known as Reckitt Benckiser Inc., attempted to maintain its hold on the Suboxone market through a tactic known as a "product hop."
According to the plaintiffs, the company moved to an under-the-tongue, dissolvable "film" form of Suboxone after protection from generics for its Suboxone tablets expired, in order to continue their market exclusivity.
Judge Goldberg certified the class of end payors in 2019, though only to decide whether there was anticompetitive conduct, meaning members of that group would have to bring individual cases if a jury finds the conduct occurred. The ruling, which also certified a class of direct purchasers, was later affirmed by the Third Circuit.
A trial is slated to begin Sept. 18, just months past what the state enforcers and others asked for in November.
Judge Goldberg rejected a bid from Indivior for an early victory in August, finding that the suit's claims rest on issues of fact that belong before a jury.
On Thursday, Indivior insisted that because the end payors haven't shown how they have suffered from the alleged scheme through "specific facts," like the amount of money they otherwise overpaid, they can't demonstrate Article III standing at summary judgment.
"EPPs have not demonstrated that each class member sustained concrete harm — and a great many are plainly unharmed," the company said.
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