Labaton Sucharow LLP, on behalf of UFCW Local 1500 Welfare Fund, has filed a class action lawsuit alleging that Amgen and Teva Pharmaceuticals entered into an anticompetitive agreement to eliminate competition for sales of Amgen’s branded Sensipar. Sensipar treats certain conditions associated with chronic kidney disease and thyroid cancer and has annual sales exceeding $1 billion.
According to the complaint, several generic drug companies filed applications seeking FDA approval of generic versions of Sensipar. Amgen later sued these generic companies for infringing Amgen’s patent for Sensipar.
While many of the generic companies settled with Amgen, a few—including Teva—went to trial. In July 2018, the trial court ruled that Teva had not infringed Amgen’s Sensipar patent. Amgen then appealed the ruling.
While Amgen’s appeal was pending, Teva received FDA approval and launched its Sensipar generic in late December 2018 at significant discount to Amgen’s Sensipar. After about one week’s worth of generic Sensipar sales, Teva reportedly realized profits of $59 million, while Amgen lost an estimated $79 million in profits.
To end Teva’s marketplace sales, on January 2, 2019, Amgen made an unlawful deal with Teva. Teva agreed to stop selling its generic version of Sensipar, to delay any further sales for nearly two and a half years, and to pay Amgen a portion of its profits during Teva’s one week of generic Sensipar sales. In exchange, Amgen dropped its appeal against Teva, allowed Teva to retain a significant portion of its generic Sensipar sales, and paid Teva for licenses to different drugs. The Amgen-Teva agreement not only eliminated Teva as a competitor, but also prevented other generics from offering their own versions of Sensipar and reducing the drug’s price to consumers.
“Competitors can’t agree to stop competing,” said Gregory Asciolla, Co-Chair of Labaton Sucharow’s Antitrust and Competition Litigation Practice. “The Amgen-Teva agreement prevented hospitals and patients who need this drug from continuing to be able to buy it in the marketplace at any price less than the one dictated by Amgen, a monopolist. That’s unlawful,” Asciolla added.
The Labaton Sucharow team includes partners Greg Asciolla, Jay Himes, Karin Garvey, and Ned Weinberger, and Of Counsel Domenico Minerva, Robin van der Meulen, and Matthew Perez.