Case Overview
On December 2, 2022, Keller Rohrback L.L.P. and its co-counsel filed a class action complaint (in the Burge case) alleging that Teva Pharmaceuticals Industries, Ltd. and its subsidiaries, among others, participated in a scheme to improperly block access to two different pharmaceutical products: a generic version of Teva’s branded drug Nuvigil and a generic version of the EpiPen, a life-saving drug/device combination for the treatment of severe allergic reactions. Nuvigil is a critical medication used to reduce extreme sleepiness caused by narcolepsy, sleep apnea, and other sleep-related conditions. In addition to those afflicted by sleep disorders, hospital workers, truck drivers, fire fighters, and many others rely on Nuvigil to keep them awake when working unconventional hours.
Plaintiffs allege that Teva signed secret deals with other pharmaceutical manufacturers to restrict market access for lower-cost alternatives to EpiPen and Nuvigil. They allege these deals allowed both sides to protect their respective monopolies by delaying entry of generic competition for their respective branded drugs for several years longer than legally allowed. As a result of this conspiracy, Plaintiffs allege, Teva was able to keep Nuvigil’s price high and enrich itself at the expense of American health plan payors and consumers who overpaid by hundreds of millions—if not billions—of dollars for the drug. A month’s supply of Nuvigil currently costs between $389–$1,151, depending on dosage.
The Burge action is pending in the U.S. District Court for the District of Kansas. Since Burge began, Keller Rohrback L.L.P. and its co-counsel have also brought two additional cases against Teva, concerning the same conduct as it affected individuals in other states. Initially filed in New York and California, those cases have been transferred to the District of Kansas and consolidated as the Pennington case. Pennington is assigned to the same judge and magistrate judge who preside over Burge.
A previous action concerning the pricing, sales practices, and marketing of the EpiPen, against different defendants, has already resulted in settlements totaling $609 million. See In re EpiPen Marketing, Sales Practices, & Antitrust Litigation, 17-md-2785 (D. Kan.) (see Keller Rohrback’s webpage on that case). That settlement, however, addressed only the EpiPen and concerned only certain companies’ roles in the pay-for-delay scheme. The Burge and Pennington cases address the other participant in the scheme, Teva, and the other side of the exchange: Nuvigil.
In the News
Reuters: Teva delayed generic EpiPen, Nuvigil in illegal scheme, new suit says
Fierce Pharma: EpiPen litigation comes back to haunt Teva a decade after initial settlements
New York Times: Viatris Agrees to Settle EpiPen Antitrust Litigation for $264 Million
Reuters: Pfizer agrees to pay $345 mln to resolve EpiPen pricing lawsuit
Law360: Edgar et al v. Teva Pharmaceuticals Industries, Ltd. et al
EDRM: Definition and Application the Crime-Fraud Exception to A-C Privilege
