Judge allows Dr Reddy’s to add antitrust claims in Indivior dispute
A district judge has given India-based Dr Reddy’s the greenlight to move forward with its antitrust counterclaims against Indivior.
Yesterday, August 24, Judge Kevin McNulty of the US District Court for the District of New Jersey ruled that Indivior was not shielded from liability in the litigation centering on generic versions of Indivior’s opioid addiction treatment Suboxone (buprenorphine) film.
Affirming a magistrate judge’s November 2019 decision, McNulty allowed generic makers Dr Reddy’s and Alvogen Pine Brook to amend their answers and add counterclaims to Indivior’s lawsuit against them.
Indivior had appealed against the magistrate judge’s order and requested the court dismiss Dr Reddy’s and Alvogen’s antitrust counterclaims, but McNulty yesterday denied both submissions.
Dr Reddy’s and Alvogen’s amended answer asserts two counterclaims: monopolisation and recovery of damages for wrongful injunction.
Turning to the antitrust arguments, McNulty concluded that the defendant’s “proposed amendments are not futile, because they would withstand a motion to dismiss”.
In April last year, Indivior was indicted by the US Department of Justice for “engaging in an illicit nationwide scheme to increase prescriptions of Suboxone film”.
Indivior argued that the magistrate judge’s opinion contained clear error, because Indivior’s actions—particularly, filing the Hatch-Waxman suits and obtaining preliminary injunctions—are presumptively shielded from antitrust liability.
But, McNulty disagreed, finding that Dr Reddy’s and Alvogen had sufficiently alleged that the underlying litigation was “baseless and was intended to stifle competition”, therefore sufficiently pleading the sham litigation exception.
The judge also rejected Indivior’s attempts to stop Dr Reddy’s from asserting its wrongful injunction counterclaim.
Finally, McNulty denied Dr Reddy’s and Indivior’s motion for an entry of partial final judgment of non-infringement. In January this year, the court ordered the parties’ stipulation of non-infringement as to the 9,931,305 patent.
“Here I find good reason to delay entry of a final judgment as to the ’305 Patent claims. Although the rule 54(b) motion cites case law severing patent claims from antitrust claims, there is here the complicating factor of the yet-unadjudicated claims under the 9,687,454 patent,” said the judge.
He added that, as a matter of case management, any final judgment should “at least await the resolution of all the patent issues”.
McNulty denied the motion without prejudice, allowing the defendants to submit a renewed application to sever the patent claims from the antitrust counterclaims after the ‘454 patent claims are resolved.
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