Gilead loses bid to quash parallel antitrust HIV lawsuit
Gilead Sciences has failed to prevent insurer Aetna from pursuing its lawsuit in a US state court, as it faces a spate of antitrust complaints alleging that it used pay-for-delay deals to maintain the high costs of HIV drugs.
In December 2021, Aetna filed a lawsuit accusing Gilead of illegally blocking generic competition in a state court in California, but Gilead moved the case to a federal court in the same state.
Aetna then moved to remand. The same day that Gilead’s opposition to the remand motion was due, Aetna filed a notice of voluntary dismissal. Aetna then filed a new complaint in the state court in January 2022, which seemed to be substantially the same as its initial complaint.
Gilead accused Aetna of attempting to subvert the removal of a prior case in a state court by refiling the lawsuit in state court and asked that the insurer be prevented from pursuing its claims at the Superior Court of California in San Mateo County.
In its motion, the pharma company noted that: “The Ninth Circuit has held that 'where a second state court suit is fraudulently filed in an attempt to subvert the removal of a prior case, a federal court may enter an injunction’.”
It added that in filing its “purported” voluntary dismissal, Aetna had effectively “lulled Gilead into refraining from taking a step that would have precluded Aetna’s ability to file a pre-answer notice of dismissal” and that the insurer should not be rewarded for “such a cynical tactic”.
On Tuesday, March 29, Judge Edward Chen handed down a decision at US District Court for the Northern District of California, dismissing Gilead’s arguments.
“The defendants have a desire for all of the cases based on the same underlying facts before one court (this court) instead of being split between a state court and this Court. But it is not uncommon for parallel cases to be litigated in state and federal court,” he noted.
Judge Chen also found that while a district court may enjoin a state suit under the express provision of § 1446(e), this does not also imply the power to prevent dismissal under Rule 41.
Last year, the largest insurance company in the US, United HealthCare Services, also accused Gilead Sciences of colluding with Teva Pharmaceuticals to stave off the latter’s generic versions of the antiviral drugs.
Other insurers and retailers, including Humana and Blue Cross Blue Shield, have sued the pharmaceutical giants on the same grounds. The lawsuits claim Teva struck deals to settle patent suits with Gilead to halt the roll-out of a generic form of Viread until December 2017 and generic forms of Truvada and Atripla until September 2020.
Gilead makes three of the four top-selling HIV medications in addition to other drugs used in HIV combination antiretroviral therapy. According to lawsuits filed by retailers, more than 80% of US patients starting HIV treatment take one or more of Gilead’s products each day,
According to Humana’s complaint, most of the company’s HIV medications cost $10 to produce, but for nearly 20 years Gilead charged health plans thousands of dollars for a 30-day supply. HIV drugs earned Gilead nearly $17 billion in sales in 2020.
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