In Re K-Dur Antitrust Litigation

Indirect purchasers of Schering-Plough’s potassium chloride drug, K-Dur, sued Schering-Plough Corporation, Upsher-Smith Laboratories, Inc., and Wyeth, alleging that patent settlement agreements between Schering-Plough and the generic manufacturers harmed consumers by delaying entry of generic versions of K-Dur. Dan Rubinfeld, supported by Bret Dickey, Mark Rodini, and Compass Lexecon teams in the Oakland, Los Angeles, and Washington, DC offices, was retained by Schering-Plough to analyze economic issues relevant to certification of the putative class of insurers and consumers. Dr. Rubinfeld demonstrated that, because K-Dur is much less expensive than the typical branded drug, the conventional wisdom that insurers save money with generic drugs was not correct in this situation and therefore class certification should be denied. The court, citing Dr. Rubinfeld’s analysis, agreed, concluding that plaintiffs failed to demonstrate that injury could be established using common proof and denied plaintiffs’ motion to certify the putative class. Schering-Plough is represented by John Nields, Alan Wiseman, Tom Isaacson, and others at Howrey LLP.