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30 March 2023AmericasLiz Hockley

New York judge awards $33m to Abbott in diabetes test strip dispute

H&H Wholesale Services found to have committed ‘fraud on the court’ | Final amount includes attorneys’ fees and costs.

A US federal court has awarded a total of $33.4 million to Abbott Laboratories at the conclusion of a long-running trademark dispute over Abbott’s FreeStyle diabetes test strips.

In a judgment filed on March 24, Judge Carol Amon of the Eastern District of New York Court ordered H&H Wholesale Services to pay the sum which includes damages, attorneys’ fees and pre-judgment interest.

In December last year, Judge Amon declared that Abbott’s actual damages of $13 million should be doubled and that Abbott could recover attorneys’ fees and costs from H&H Wholesale Services. This new figure of $33.4 million encompasses these costs.

The case dates back to 2015 when US medical device firm Abbott filed a trademark action against H&H Wholesale Services and other defendants, alleging that they had violated its IP rights by selling an international version of Abbott’s FreeStyle diabetes test strip in the US.

Abbott’s FreeStyle test strips are used by people with diabetes to self-test their blood glucose levels.

A fraud on the court

Two years later, Abbott filed a related action claiming that H&H was selling the international test strips repackaged into counterfeit US packaging. “In that action, Abbott conducted a Court-authorised search of H&H’s premises, which resulted in the seizure of their email server,” said judge Amon.

“Review of the contents of that server revealed that the H&H defendants had engaged in a calculated pattern of discovery misconduct in this action that amounted to a fraud on the court.”

In 2020, the court granted Abbott’s motion for sanctions and entered a default judgment against H&H.

Judge Amon concluded in December 2022 that the firm had “satisfied its burden to establish actual damages” and that the figure should be doubled to $26,491,380, rejecting a request from Abbott to triple the amount.

Abbott Laboratories was represented by Patterson Belknap Webb & Tyler in the case.

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More on this story

Americas
4 January 2023   Distributors and pharmacies face millions in damages and costs after selling international versions of Abbott products in the US | Fraud upon the court discovered after a court-authorised search of defendant’s premises seized an email server.
Biotechnology
14 March 2023   “Customer suit exception” is rejected by district judge | Suit between Chr. Hansen and Glycosyn is ongoing.
Big Pharma
1 June 2023   Ex-scientist faces lawsuit for allegedly downloading thousands of files before leaving for a rival | Abbott seeks damages for ‘flagrant misconduct’ brought to its attention by successive employer.