Aetna gets antitrust suit moved back to state court
American health care company Aetna has convinced a California court to transfer its antitrust action claiming that Gilead and other drugmakers used pay-for-delay tactics to maintain high costs of HIV treatments.
Aetna initially sued Gilead, BMS, and Janssen in December 2021, accusing the companies of illegally blocking generic treatments in California state court.
However, Gilead convinced the state court to move the case to the US District Court for the Northern District of California, citing diversity jurisdiction concerns.
In response, Aetna moved to remand the decision and later filed a motion to dismiss the case, filing a new complaint a day later back in the California state court in January 2022, which looked to be “basically the same as the first”, according to the federal court.
Gilead accused Aetna of attempting to subvert the removal of the original lawsuit by refiling and requested that Aetna be prevented from pursuing refiling a new complaint in the San Mateo County court.
Gilead claimed Aetna had “lulled Gilead into refraining from taking a step that would have precluded Aetna’s ability to file a pre-answer notice of dismissal”.
However, the Californian Federal Court dismissed these arguments in a decision posted on March 29. Gilead then requested that Aetna’s second lawsuit also be moved to the district court, which Aetna protested.
Now, in an order handed down on Wednesday, April 20, district court judge Edward Chen ordered that Aetna’s second lawsuit be sent back to state court, against Gilead’s wishes.
Chen said that Gilead’s reliance on precedent set in a ninth circuit decision Lou v Belzberg (1987) which stated that a federal court has authority to enjoin state court action from proceeding was of “no assistance” to their defence.
In the order, Chen noted that there was evident “gamesmanship” and “forum shopping” by both parties in the dispute, noting Gilead’s “snap removal” of Aetna’s second action to the California Federal Court.
“Even though Gilead is a California resident and thus a forum defendant, it was able to remove Aetna I and argue against application of the forum defendant rule because it managed to remove the case before Aetna was able to serve it,” said Chen.
He added: “Because the court concludes that Aetna acted within its rights in voluntarily dismissing Aetna I—even if that involved gamesmanship—then there is no basis to enjoin Aetna from prosecuting Aetna II in state court.”
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