Stephen Orlofsky’s Special Master Report Adopted in Pharmaceutical Case
March 29, 2010
Stephen Orlofsky’s special master report on a suit against Schering-Plough Corp. was adopted by Judge Joseph Greenway Jr.
Mr. Orlofsky found no merit in a class action claiming that Schering-Plough Corp. violated antitrust law by paying drug companies to delay introduction of generics of potassium-deficiency drug K-Dur.
The plaintiffs urged Mr. Orlofsky to evaluate the case under an analysis that presumes such “reverse payments” are anticompetitive but allows a rebuttal of that presumption.
Mr. Orlofsky said no court has ever used the analysis. Instead, he applied a framework adopted by the Second, Eleventh and Federal circuits.
“As long as the Upsher and ESI settlements restrained competition only within the scope of Schering's patent, or the underlying patent lawsuits were objectively baseless, defendants are entitled to summary judgment on [direct purchaser] plaintiffs' antitrust claims,” Mr. Orlofsky said.
He added that the settlements do not exceed the exclusionary scope of Schering’s patent on K-Dur, which gave Schering the right to exclude infringing products until September 2006.
“However, the test is not whether Schering might have lost the patent suit, it is whether the suit was so objectively baseless that no reasonable litigant could realistically expect success on the merits,” Mr. Orlofsky wrote.
“Schering-Plough Wins Dismissal of Suit Alleging Generic Drug Makers Paid Off” by Charles Toutant appeared in the New Jersey Law Journal on March 29, 2010. To read the full article, www.law.com/jsp/nj.
“Reverse Payment Suit Over Generic K-Dur Tossed” by Ryan Davis appeared on Law360 on March 25, 2010. To read the full article, visit www.law360.com.