In re Aggrenox Antitrust Litigation

Labaton Sucharow challenges pay-for-delay agreement for Aggrenox

On June 12, 2014, Labaton Sucharow filed a class action complaint on behalf of consumers and third-party payors who purchased, paid for, or were reimbursed for prescriptions for combination aspirin and extended-release dipyridamole, a drug manufactured by global pharmaceutical company Boehringer Ingelheim under the brand name Aggrenox. Aggrenox typically is used to lower the risk of stroke in people who have suffered a transient ischemic attack (mini-stroke) or stoke due to a blood clot.

The plaintiff alleged that absent the Aggrenox pay-for-delay agreements entered into by Boehringer and the generic manufacturer, Barr Pharmaceuticals, generic versions of Aggrenox would have been on the market as early as August 14, 2009. This pay-for-delay agreement caused the plaintiff and the class to continue paying supracompetitive prices for Aggrenox throughout the class period, beginning on August 14, 2009.

The court granted in part and denied in part the defendants’ motions to dismiss the end payor plaintiffs’ claims in August 2016. The court also ruled in August 2016 that the market is limited to the market of Aggrenox and its generic equivalents. In September 2017, end payor plaintiffs reached an agreement in principle with all defendants to settle all claims. Labaton Sucharow serves as class counsel in this matter.

The case is In re Aggrenox Antitrust Litigation. The plaintiff is Pipefitters Union Local No. 537 Health & Welfare Fund. The defendant is Boehringer Ingelheim Pharma GmbH.

Background
Aggrenox was a core drug for Boehringer Ingelheim, generating several hundred million dollars a year. Generic manufacturer Barr Pharmaceuticals (now Teva) wanted to enter the market with lower-priced generic alternatives to the brand-named drug, which would provide significant cost savings to consumers. Barr challenged the validity and enforceability of the patent covering Aggrenox. The plaintiff alleges that rather than risk a court determination that the Aggrenox patent was invalid or unenforceable, Boehringer agreed to pay Barr with up to $120 million in one-time and annual royalty payments for co-promotional services relating to the sale of Aggrenox in exchange for Barr agreeing to abandon its patent challenge and refrain from launching a generic version of Aggrenox until at least July 2015. This agreement substantially delayed entry of low-cost generic alternatives into the market, thereby reducing competitive options to consumers and maintaining high Aggrenox prices. The payment agreement that the defendants entered into are typically referred to as reverse payment or pay-for-delay agreements.