(October 19, 2022, Pennsylvania) Steptoe obtained a major summary judgment victory for its client, Aquestive Therapeutics, Inc. (Aquestive), winning dismissal of antitrust conspiracy claims brought against Aquestive by a consortium of 42 State attorneys general. In re Suboxone (Buprenorphine Hydrochloride and Naloxone) Antitrust Litigation, No. CV 16-5073, 2022 WL 11804048 (E.D. Pa. Oct. 19, 2022). The ruling, which dismisses all claims against Aquestive, brings a close to more than six years of litigation.
Aquestive is a pharmaceutical company advancing current standards of care to solve patients’ problems through simplifying complex delivery methods, including with its proprietary best-in-class technologies, like PharmFilm®. Its product portfolio includes Suboxone Film, which it developed and manufactured for Indivior Inc, and which is used to treat opioid addiction. In 2016, a group of State attorneys general brought antitrust claims against both Aquestive and Indivior based on an investigation initiated in 2011 focusing on alleged “product hopping” conduct associated with Suboxone. The States alleged that Indivior engaged in a “product hop” to switch the market from Suboxone tablets to Suboxone Film (similar claims against Indivior brought by several groups of private plaintiffs are still pending; Aquestive is not a defendant in these proceedings). The States alleged that to accomplish the product hop, Indivior worked to delay market entry by generic competitors to Suboxone Film, priced Suboxone Film lower than Suboxone tablets (the Suboxone product it sold prior to the introduction of Suboxone Film), disparaged the safety of Suboxone tablets, and ultimately withdrew Suboxone tablets from the market altogether. The States claimed that, as a result of this conduct, generic tablet manufacturers could not compete effectively because they could not benefit from the automatic “substitution” of their generic tablets by pharmacists filling prescriptions for Suboxone Film. The states contended further that Aquestive illegally conspired with Indivior to impede generic competition.
In a comprehensive October 19, 2022 opinion, Judge Mitchell Goldberg of the Eastern District of Pennsylvania rejected these claims in their entirety as to Aquestive, holding that there was not sufficient evidence of a conspiracy for the States to survive summary judgment. Judge Goldberg held that there was no evidence that Aquestive participated in most of the challenged conduct at issue and that – even if Aquestive were aware of Indivior’s allegedly anticompetitive conduct – that awareness would not establish an intention to join an illegal conspiracy. Instead, Judge Goldberg held that Aquestive “worked diligently to do precisely what it contractually agreed to do: produce Suboxone film sufficient to meet [Aquestive’s] needs in exchange for a per-strip charge and a royalty share of the profits, and that “[a]ntitrust laws do not prohibit agreement to engage in such a lawful endeavor.” In re Suboxone, 2022 WL 11804048, at *18.
The Steptoe team, led by Jim Hibey, includes Doug Green, Jamie Lucia, Jessica Rothschild, Michael Weiner, Dan Aldrich, and paralegal Jennifer Fryer.
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