In re Warfarin Sodium Antitrust Litigation
As co-lead counsel, we obtained a $44.5 million settlement along with an important Court of Appeals decision upholding the right of indirect purchasers to bring antitrust claims in federal court seeking to enjoin anticompetitive conduct.
The Coumadin litigation arose out of allegations that DuPont Merck Pharmaceutical Company, later known as DuPont Pharmaceuticals Company ("DuPont"), engaged in an unlawful scheme to, inter alia, boost sales and profits of its warfarin sodium product, a blood thinning medication whose brand name is Coumadin. It did so by fostering unwarranted concerns over the safety and effectiveness of less expensive generic substitutes.
DuPont enjoyed a monopoly in the market for warfarin sodium for decades, despite the fact that its patent for the drug expired in 1962. In 1997, Barr Laboratories, Inc. obtained FDA approval for a generic equivalent to Coumadin. In disregard of the FDA’s determination that Barr’s generic product was just as safe and effective as its brand-name equivalent, DuPont engaged in a course of deceptive marketing to maintain its market share, including baseless warnings to doctors and patients, and advertisements advising patients switching to the generic product to take additional drug tests.
Plaintiffs were consumers and third-party payors (prescription benefit providers) who alleged that DuPont had disseminated false and misleading statements about the safety and effectiveness of a generic competitor’s bioequivalent product, with the result that Class members paid more for DuPont’s brand-name product. We negotiated a $44.5 million settlement as co-lead counsel that is notable for including claims under the laws of all fifty states. The case also resulted in an important Court of Appeals decision upholding the right of indirect purchasers (consumers and their prescription benefit providers) to bring antitrust claims in federal court seeking to enjoin anticompetitive conduct.