After a jury sided with drugmaker Endo Pharmaceutical earlier this month, rejecting claims of illegal manipulation of the market for the Opana ER painkiller, the maker of Opana’s generic equivalent has reached a $145 million deal to settle claims against them for their alleged role in the dealings.
Under the deal, the lawyers who led the lawsuit could receive up to 40% of the fund, or nearly $58 million in attorney fees.
On July 19, attorneys with the firms of Berger Montague, of Philadelphia, and Garwin Gerstein & Fisher, of New York, asked a Chicago federal judge to sign off on their deal with generic drugmaker Impax Laboratories.
Andrew Curley
| Berger Montague
The settlement would end a mass of consolidated claims against Impax on behalf of a large group of so-called direct purchasers of the Opana-equivalent opioid painkiller medication produced and distributed by Impax.
The purchasers included pharmacies and retailers, including Walgreens, Meijer, Value Drug and others, as well as a collection of drug wholesalers, among others. A federal judge in 2021 allowed the plaintiffs to expand their action to include a class of 36 direct purchaser plaintiffs.
The plaintiffs have pressed their lawsuits against California-based Impax and Pennsylvania-based Endo since 2014.
The lawsuits claim Endo and Impax struck a deal, under which Endo paid Impax millions of dollars to keep its generic equivalent off the market for 2.5 years, allegedly allowing Endo to continue holding exclusive access to the market for its name brand Opana pills.
Before that deal, Endo had sued Impax for infringing Endo’s Opana patents.
The plaintiffs alleged the deal constituted a “reverse payment,” allegedly in violation of federal antitrust law.
Over the course of the next eight years, the parties engaged in what was described as “contentious” litigation proceedings.
Both Endo and Impax failed to win dismissal of the claims against them.
This summer, the case against Endo went to trial. A jury in Chicago federal court in early July delivered a verdict in Endo’s favor.
The settlement with Impax followed soon after, according to a memorandum filed in support of the settlement.
The plaintiffs specifically referenced the Endo verdict in describing the risk they might face in trying to press for a payoff larger than the $145 million offered by Impax.
Under the deal, the direct purchasers would each be paid a prorated share of the settlement, using a formula based on how much of the Opana drug they purchased at prices higher than the market would have supported, had Impax’s generic equivalent been available.
The memorandum did not estimate how much each plaintiff or class member might receive under the deal. According to the memorandum, class members would be provided with preprinted claim forms based on their purchase history.
According to the settlement memorandum, plaintiffs’ attorneys will be allowed to claim up to 40% of the settlement fund in fees.
“Plaintiffs’ Counsel applied their well-honed litigation and trial preparation skills, along with their twenty-four years of experience handling these types of cases, during settlement negotiations and believe that the settlement represents an excellent result for the Class, which belief is corroborated when juxtaposed with the jury verdict for Endo,” the plaintiffs’ attorneys wrote in the settlement brief.
The plaintiffs are represented by attorneys Andrew C. Curley and David F. Sorensen, of Berger Montague, and Bruce E. Gerstein and Jonathan M. Gerstein, of Garwin Gerstein & Fisher.
Impax has been represented by attorney Jay P. Lefkowitz, and others with the firm of Kirkland & Ellis, of New York and Chicago.