Motion to Dismiss Opposed in Exforge Pay-for-Delay Antitrust Suit

Faruqi & Faruqi represents a proposed class of direct purchasers of high blood pressure drug Exforge in a pay-for-delay antitrust suit against Novartis and Par Pharmaceutical.  Faruqi seeks recovery of overcharges paid by wholesalers and others.  The complaint alleges Novartis and Par agreed to allocate the market for Exforge, and restrict output of cheaper generic Exforge.  To induce Par’s agreement, Novartis pledged not to launch an authorized generic version of Exforge, a second market allocation output restriction.  This pay-for-delay agreement enabled Novartis to sell Exforge, and Par to sell its generic equivalent of Exforge, at artificially inflated, supra-competitive prices.

Plaintiffs allege that this conduct constituted horizontal market allocation and output restriction agreements, which are illegal per se under the antitrust laws, namely the Sherman Act and the Clayton Act.  Novartis and Par recently filed a partial motion to dismiss, looking to have the conduct judged only under the rule of reason pursuant to FTC v. Actavis, Inc., 570 U.S. 136 (2013).  In their opposition, plaintiffs explained that this case is different from Actavis.  Actavis involved patent litigation resolved through a settlement.  But Novartis never sued Par for patent infringement.  The two simply agreed not to compete.