Lawsuit against Mylan, others moved to federal court

MORGANTOWN, W.Va. — A recent multistate lawsuit alleging a number of generic drug firms – including Mylan – conspired to control the market and escalate prices has been transferred to a different federal court.

And the 43 states, along with Puerto Rico, pursuing the case have asked to have their complaint unsealed so redacted material illustrating the alleged conspiring is visible to the public.

West Virginia is among the plaintiff states. The case was originally filed in Connecticut federal district court in May. Earlier this month, it was transferred to the U.S. District Court for the Eastern District of Pennsylvania, where 44 similar suits were also transferred and where a number of related suits already are progressing.

It names 20 companies and 14 individual executives, including Mylan’s Vice President of Sales Jim Nesta, as defendants.

Israel-based Teva – which made an unsuccessful attempt to buy Mylan in 2015 – is the primary defendant. As alleged in earlier suits, the complaint describes how the drug firms communicated regularly during corporate events and via phone calls, text messages and emails, to avoid competition and maintain prices by allotting “fair” share to companies for various drugs.

This suit alleges that Teva led its alleged co-conspirators to go farther – in what it calls one of the most egregious and damaging price-fixing conspiracies in the history of the United States – by selecting a core group of “High Quality” competitors with which it already had “very profitable collusive relationships” and targeted drugs where they overlapped.

Teva had understandings with its highest quality competitors, including Mylan, the suit says, “to lead and follow each other’s price increases, and did so with great frequency and success, resulting in many billions of dollars of harm to the national economy over a period of several years.”

The complaint is a companion to another multistate suit filed in 2017 in process in the same federal court under the same judge. West Virginia is also a plaintiff and Mylan is also a defendant in that one. It targets different drugs and approaches the alleged conspiracies in a different way.

The complaint in the 2017 suit has been unsealed, so that quoted communications among the defendants that were once blacked out can now be read.

In seeking to unseal the new suit the plaintiffs assert that the information is not commercially or competitively sensitive information traditionally protected from public disclosure.

“By definition, these anticompetitive actions of the Defendants are the opposite of ‘commercially or competitively sensitive,’ and thus any references to them should be unsealed. The issues involved in this litigation are matters of paramount public significance that the public has a right to access under both the common law and the First Amendment.”

Asked about the transfer, state Attorney General Patrick Morrisey said, “This is not an unexpected development. We’re going to keep litigating our case to protect West Virginia consumers.”

Most recently in the2017 case, Mylan and the other defendants have asked to have certain claims by the various states dismissed for a variety of reasons.

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