Connecticut Denies Violating Protective Order in Generic Drug Price-Fixing Case

Connecticut’s Attorney General recently opposed a motion from Heritage Pharmaceuticals that claims that it violated the protective order in a price-fixing case against generic drug manufacturers by referring to an email in its complaint suggesting that Heritage and two other generic companies, Mylan Inc. and Teva Pharmaceuticals, tried to obstruct a congressional probe into the generic drug industry.

The email at issue was sent by Heritage’s outside counsel to the company’s then-CEO explaining that he had spoken to counsel for Mylan and Teva about coordinating a response to letters that the companies received from Rep. Elijah Cummings and Sen. Bernie Sanders as part of an investigation into generic drug pricing. Heritage’s motion also claims that the Connecticut Attorney General’s Office leaked an unredacted version of its complaint that included the email to a media outlet.

In response to Heritage’s motion, the Connecticut Attorney General responded that it did not violate the protective order because the document was obtained through investigatory subpoenas – rather than as part of discovery in the case – and therefore the protective order did not apply to the State’s use of the document. Additionally, in response to Heritage’s privilege claims, the Attorney General of Connecticut argued that the email is not privileged because it recounted a communication between Heritage’s counsel and third parties. The “common-interest privilege,” which shields communications with third parties when they concern shared litigation interests, also does not apply according to the State, because the Congressional probe focused on different generic drugs for each company. “If Heritage did not even sell the one drug that was the subject of the inquiry, it would have no need to communicate with those third parties in order to adequately respond to that inquiry,” the opposition said.

In addition to Connecticut, forty-four other states mentioned the email in a May complaint, which was initially filed in Connecticut and then transferred to the multidistrict litigation (“MDL”) that is pending in the Eastern District of Pennsylvania. The MDL includes more than 40 cases and alleges that several generic companies conspired to raise the prices of multiple generic drugs. Faruqi & Faruqi represents the direct purchasers in the litigation.

Connecticut’s Opposition can be read here.