Prosecuting Cases in Federal and State Courts Throughout the United States

Cipro

We represent a class of plaintiffs seeking damages from Bayer Corporation, a unit of Bayer A.G., which manufactures the antibiotic drug Ciproflaxin, also known as Cipro. Barr Laboratories and two other generic drug companies are also named as Defendants in the complaint. Plaintiffs claim that Bayer and the other Defendants entered into an illegal pay-for-delay or reverse payment agreement whereby Bayer entered into an agreement to pay the other Defendants $398.1 million to keep generic Cipro off the market.

After the suit was filed, Defendants filed a Motion to Dismiss, which was denied by the California Supreme Court in November 2002.

In August, 2009, the Superior Court Granted summary judgment to Defendants. In response, California plaintiffs appealed and filed a brief in July 2010 supported by 78 experts, including antitrust, intellectual property, business, and economics professors claiming the summary judgment would “shield many anti-competitive agreements from the reach of antitrust law,” thus undermining the free market and competition to consumers.

In October 2011, the appellate court supported the trial court’s Grant of Summary Judgment in favor of Bayer.

In December, 2011, plaintiffs filed a Petition for Review with the California Supreme Court asking for a reversal of the decision.

In February, 2012, the California Supreme Court granted the Petition for Review, thus agreeing to hear the case on the merits. “We are grateful that the California Supreme Court will review this case, and look forward to arguing that these collusive agreements violate California’s antitrust laws,” said attorney Joseph R. Saveri. “With prescription drug prices continuing their unchecked rise, drug companies owning prescription drug patents must not be permitted to suppress competition by buying off their would-be rivals.”

Shortly afterwards, on March 16, plaintiffs filed a new brief on the merits of the case with the California Supreme Court.

On August 20, 2012, plaintiffs filed their reply brief with the California Supreme Court.

On its own motion, the court stayed further briefing in this matter pending action by the United States Supreme Court in Merck & Co. v. Louisiana Wholesale Drug Co., No. 12-245, and Upsher-Smith Laboratories, Inc. v. Louisiana Wholesale Drug Co., No. 12-265, and further order of this court.

On March 25, 2013, the United States Supreme Court heard oral argument in Federal Trade Commission v. Actavis, No. 12-416. On June 17, 2013, the Supreme Court reversed.

On July 1, 2013, Plaintiffs filed the Application to Stay Briefing and Consideration in order to Allow Appellants and Respondent Bayer Corporation to Seek Approval of Partial Class Action Settlement in the Superior Court.

On July 11, 2013, Plaintiffs filed their Motion for Preliminary Approval of the proposed $74 million dollar partial settlement with Bayer.

On August 9, 2013, the Court granted Preliminary Approval of the $74 million proposed settlement between the Class and Bayer. The Court set the Final Approval hearing for November 15, 2013.

On October 1, 2013, Plaintiffs filed their Motion for Final Approval of the proposed $74 million settlement with Bayer as well as their Motion for Attorneys’ Fees, Costs, and Incentive Awards.

On November 18, 2013, the Court granted Final Approval of the Bayer Settlement and awarded attorneys’ fees to Plaintiffs’ Counsel.

Full details about the settlement can be found at www.CiproSettlement.com. Class Members must submit a claim form by March 31, 2014 in order to get a payment.Class members may comment on or object by October 16, 2013.

Following approval of the Bayer Settlement, the California Supreme Court entered an Order vacating the stay entered on July 10, 2013, and requesting supplemental briefing from the parties discussing the relevance of the United States Supreme Court’s decision in FTC v. Actavis, Inc. (2013) 570 U.S. __ (133 S.Ct. 2223). The Court’s Order also set an amicus curiae briefing schedule.

On January 24, 2014, in response to the California Supreme Court’s Order above, Plaintiffs-Appellants submitted their supplemental letter brief discussing the relevance of Actavis. The Defendants-Respondents submitted their supplemental letter brief as well.

On March 18, 2014, several amicus curiae briefs were submitted to the California Supreme Court addressing the Cipro appeal, including those from the California Attorney General, the American Antitrust Institute, 49 Professors, the Consumer Attorneys of California, the Generic Pharmaceutical Association, the Chamber of Commerce of the United States, and the Washington Legal Foundation.

On April 24, 2014, the parties submitted their responses to the amicus curiae briefs. Plaintiffs-Appellants’ brief can be read here, and the Defendants-Respondents’ here.

The California Supreme Court heard oral arguments on March 3, 2015.
Listen to hearing here.

On May 7, 2015, the California Supreme Court reversed summary judgment and revitalized the class claims of California consumers. The Court, in a unanimous decision, held, “Parties illegally restrain trade when they privately agree to substitute consensual monopoly in place of potential competition.” The Court rejected the “scope-of-the-patent” test applied by the lower courts, and instead pronounced a “structured rule of reason” test to determine the legality of pay-for-delay settlements under California’s Cartwright Act. The decision will put much greater scrutiny on pharmaceutical drug company’s patent settlements and resound to the benefit of consumers–a primary purpose of the Cartwright Act emphasized in the Court’s opinion. Read the opinion here.

The California Supreme Court is the first state high court to decide the legality of pay-for-delay settlements under state law. The court’s ruling also marks the first decision by an appellate court in a pay-for-delay case since the U.S. Supreme Court’s decision in FTC. v. Actavis.

On July 8, 2015, the California Supreme Court denied Watson’s petition for rehearing and sent the case back down to the Court of Appeal. Watson subsequently asked the Court of Appeal to affirm summary judgment in its favor, despite the Supreme Court’s ruling. The Court of Appeal denied Watson’s repeated request on August 24, 2015, sending the case back to the Superior Court where the case will continue against all of the generic manufacturer defendants.