The Magical Mystery Tour to the Solodyn Trial

On Monday, March 12, 2018, trial started in the District of Massachusetts in the challenge to the reverse payments involving the drug Solodyn, an extended release minocycline used to treat acne.  The case started in 2013.  Initially, the case involved a class of direct, a class of indirect purchasers, and individual retailers against one brand defendant (Medicis) and three generic defendants (Impax, Sandoz and Lupin) over reverse payments made to settle patent litigation over Solodyn.   As shown below, the path to trial in antitrust cases often is a long and winding road.

Plaintiffs survived a motion to dismiss, because in the end, Plaintiffs had alleged every little thing necessary to state a claim.

Discovery took more than a year, with depositions here, there and everywhere.  Along the way, the Plaintiffs settled with Lupin and Sandoz, leaving Impax and Medicis to say “the Two of Us will wait” until summary judgment or trial.

In October 2017, the Plaintiff Classes were certified.  In January 2018, all Plaintiffs prevailed on summary judgment as the Court found there were disputed facts for which Defendants had no reply and the matter was headed to trial.

Shortly after denial of summary judgment, Medicis said “We Can Work It Out” and “You Won’t See Me” at trial, and settled with each group, paying 35 million to the Direct Class, 23 million to the Indirect Class, and an undisclosed amount of money to the retailers.

On the eve of trial, Impax told the Direct Purchaser Class to let it be and settled for 35 million,  opting to take a ticket to ride to trial against the Indirect Class and the Retailers.

The trial is set to last approximately six weeks, which the jury, no doubt, will feel is a long, long, long time.  Plaintiffs bear the burden of proof to show what goes on in reverse payment cases, and it remains to be seen if they can carry that weight.  What will the jury find?  Tomorrow never knows.  Either they will find that what Medicis and Impax did was too much monkey business, or they will find Impax not guilty.  Either way, I’ve got a feeling the magical mystery tour should be over soon.