Buyers of Zetia seek class recertification after 4th circ ruling
Wholesale buyers of MSD’s (known as 'Merck & Co' in the US) cholesterol treatment Zetia have asked a Virginia court to recertify their class status and move to trial following a recent fourth circuit ruling that reversed the court’s prior certification.
A memorandum submitted on 24 September attaches more than “two dozen” parties and their counsel to the long-running antitrust suit, which claims that MSD engaged in illegal pay-for-delay activity with generic drugmaker Glenmark.
Lead counsel for the plaintiffs, Glasser and Glasser’s William Monroe, asked the court to recertify the direct purchaser class and establish a “prompt” trial date for the case that has been running since June 2018.
The renewed motion for class certification was submitted to the US District Court for the Eastern District of Virginia.
Both MSD and Glenmark filed to appeal the Virginia court’s prior class certification at the fourth circuit on 25 January 2021, arguing that the circumstances of the class members do not justify an award of class status.
In August, the US Court of Appeals for the Fourth Circuit unanimously voted to decertify the class of direct purchasers, claiming that Virginia district judge Rebecca Smith did not fully consider whether the then 35 class members could be officially joined in the lawsuit.
‘Unlawful agreement’
In 2006, Glenmark sought to market a generic version of Zetia, leading MSD to file a patent infringement suit against the company. In 2009, claiming Glenmark infringed the treatment’s key patent which was set to expire in April 2017.
Both MSD and Glenmark settled their lawsuit with an agreement that allowed Glenmark to launch its generic drug in 2016.
A group of direct purchasers accused MSD and Glenmark of breaking antitrust law with the “pay-for-delay” settlement, filing a complaint in 2018.
The purchasers alleged that MSD had agreed to drop the infringement suit over the Zetia generic if Glenmark agreed not to release its variant until after the patents expired.
The amended complaint also states that Glenmark, which had challenged the validity of MSD’s patents, would have had a “realistic likelihood” of succeeding if the two companies had not settled.
“The class has likely paid hundreds of millions in overcharges as a result of MSD and Glenmark’s unlawful agreement,” the class alleged in an amended complaint.
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