Oh My Darling, Memantine: Summary Judgment Denied and Class Certified in the Namenda case

On August 2, 2018, Judge McMahon denied Forest’s motion for summary judgment and granted certification of a class of Direct Purchasers in In re Namenda Direct Purchaser Antitrust Litigation.  In Namenda, Plaintiffs are challenging a product hop by Forest from Namenda IR to Namenda XR and reverse payments by Forest in settlement of patent litigation over Namenda IR.

The New York Attorney General had previously sued Forest over its product hop, and Judge Sweet enjoined Forest from formally withdrawing its Namenda IR product.  The Second Circuit affirmed, finding that Forest’s communications to the market that it intended to withdraw Namenda IR was the same as an actual withdrawal, or “hard switch.”  Plaintiffs brought their claims thereafter over the product hop as well as the reverse payments.  As noted in her summary judgment opinion, Judge McMahon had previously ruled that Forest could not revisit Judge Sweet’s and the Second Circuit’s rulings on the product hop.

In its recent summary judgment filings, Forest contended that its payments to settle the patent litigation were neither large, nor excessive, and that it had not caused Plaintiffs any harm through any product hop.    

Denying summary judgment on the reverse payment claim, Judge McMahon held that Plaintiffs had come forth with sufficient evidence to demonstrate that Forest’s payments to settle the patent litigation were large and unjustified, exceeding Forest’s saved litigation costs.  To the extent that Forest had evidence to justify the payments, Judge McMahon held that Forest simply had raised a factual issue for the jury to consider.

As to the product hop claim, given the earlier ruling on estoppel, the only issue remaining whether Plaintiffs could establish damages.  Judge McMahon first denied Forest’s challenge to Plaintiffs’ expert analysis in support of the claim for damages, finding that Plaintiffs’ experts’ methodology for calculating classwide damages on the effect of the product hop passed muster under Daubert.  The Court then denied the motion for summary judgment on hop claim on the strength of that expert opinion.

The Court next granted the motion for class certification, finding that Plaintiffs had sufficiently met the requirements under Rule 23 of numerosity, commonality, typicality and adequacy of representation.  The Court has yet to set a trial date.