Third Circuit Won’t Rehear Wellbutrin ‘Reverse Payment’ Cases

Zack Needles, The Legal Intelligencer

The U.S. Court of Appeals for the Third Circuit has let stand its August ruling upholding the dismissal of antitrust claims against GlaxoSmithKline.

The court denied petitions for both panel and en banc rehearings filed by direct and indirect purchasers of Wellbutrin XL.

The purchasers had alleged that a patent infringement settlement between GSK and generic drugmakers unlawfully delayed market entry of generic versions of the popular antidepressant.

On Aug. 9, a three-judge panel of the court—Judges Kent A. Jordan, Thomas I. Vanaskie and Richard L. Nygaard—affirmed two summary judgment rulings by U.S. District Judge Mary A. McLaughlin of the Eastern District of Pennsylvania from 2012 and 2015.

The litigation was initiated by the direct and indirect purchasers in 2008. Those plaintiffs argued that the agreement, in which GSK resolved patent disputes with several generic drugmakers by agreeing to hold off on releasing its own authorized generic version of Wellbutrin XL, constituted an anti-competitive “reverse payment settlement” designed to keep generic competitors at bay.

In her 2012 summary judgment ruling, McLaughlin found that GSK did not file any sham patent lawsuits in an effort to thwart generic drug companies.

In the 2015 ruling, McLaughlin granted GSK’s motion for summary judgment on all claims, saying that “even if the plaintiffs had shown that the Wellbutrin settlement had anti-competitive effects, the court finds that a reasonable jury could not find that any anti-competitive effects outweigh the pro-competitive benefits of the settlement.”

GSK had argued in its summary judgment motion that the plaintiffs could not establish that they suffered an antitrust injury or antitrust causation, while the plaintiffs argued they did so by illustrating the large settlement payment and delay of generic-drug entry into the market.

“In essence, the plaintiffs argue that once they have shown a large payment and a delay, they have established not only anti-competitive conduct but also antitrust injury or causation. The court concludes that the principle propounded by the plaintiffs would not only eviscerate the rule-of-reason analysis,” McLaughlin said, “but also ignores the longstanding and strict principles of antitrust injury and causation.”

McLaughlin said an antitrust injury cannot be presumed just because there was an agreement that caused harm to certain parties.

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