In re Abbott Laboratories Norvir Antitrust Litigation

Settled: August 06, 2009

An important victory against a drug company on behalf of HIV-positive patients and the public at large

Labaton Sucharow served as co-lead counsel in this lawsuit and helped break new ground in antitrust law while scoring significant victories on behalf of consumers with HIV. In 2003 Abbott Laboratories (Abbott) quadrupled the price of a key HIV drug, Norvir, in an effort to harm competitors whose drugs were dependent on combination with Norvir. Despite boycotts by HIV physicians and investigations launched by several states and a congressional committee, Abbott refused to roll back its anti-competitive price hike.

In 2004, Labaton Sucharow brought suit against Abbott on behalf of the Service Employees International Union Health and Welfare Fund, alleging that Abbott had violated antitrust laws by means of the Norvir price hike. After unsuccessfully moving to dismiss the case, Abbott brought a summary judgment motion arguing that it owned a patent on the method of using Norvir to boost other HIV drugs, and that it could legally prevent consumers from using Norvir with these drugs. On behalf of our client, Labaton Sucharow urged the court to reject Abbott's patent arguments and send the case to a jury.

On July 6, 2006, in a ground-breaking decision, the court did just that. In the first ruling of its kind, the court held that Abbott could not both encourage consumers to take Norvir with other medications and claim that consumers were infringing on its patent rights. The court rejected Abbott's other arguments and denied Abbott's motion, effectively sending the case to trial. The significant ruling Labaton Sucharow obtained on behalf of its client represents both a key decision on the intersection of intellectual property and antitrust law and a milestone in the battle to preserve competition in the market for drugs critical to the survival of people living with HIV/AIDS.

On June 12, 2007, the court certified a nationwide class for injunctive relief and a 48-state class for unjust enrichment damages. Subsequently, on May 16, 2008, the court granted plaintiffs' cross-motion for partial summary judgment invalidating three of Abbott's key patents involving Norvir. The court also denied in part Abbott's motion for summary judgment and held that plaintiffs demonstrated a triable issue of fact with respect to all of the elements of a Sherman Act claim, including antitrust injury, monopoly power (and direct and circumstantial evidence) and anti-competitive conduct.

On August 6, 2009, the District Court granted final approval to a novel settlement of the case. Under the terms of the agreement, Abbott made $10 million available to non-profit organizations serving individuals with HIV.