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Reckitt Benckiser Healthcare (UK) Ltd. has won dismissal from a lawsuit by 35 states and the District of Columbia alleging that several companies conspired to fix the price of the opioid treatment drug suboxone.
The win comes at a time when the drugmaker, which also manufactures household products like condoms and baby formula, has weathered a cyberattack and cut its sales forecasts twice. Exiting the states’ antitrust case should help Reckitt Benckiser’s bottom line given the complexity and cost of discovery in such cases. According to Bloomberg Law’s Litigation Analytics, antitrust litigation is 14.5 percent of the company’s overall court load, and the consolidated cases in the Pennsylvania federal court are by far the biggest piece of that litigation segment.
U.S. District Court for the Eastern District of Pennsylvania Judge Mitchell S. Goldberg held Oct. 16 that the states’ complaint against several drugmakers doesn’t sufficiently connect Reckitt Benckiser Healthcare (RBH) to any wrongdoing ( In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig. (Wisconsin v. Indivior Inc.) , 2017 BL 371419, E.D. Pa., No. 16-cv-5073, 10/16/17 ).
RBH makes suboxone, and the states claimed it was involved in a joint venture with Indivior Inc. and MonoSol RX LLC to convert suboxone from a tablet form to a dissolvable oral strip. That slight shift prevented other companies from marketing a cheaper generic, the states claim.
The complaint alleges that Indivior made $1 billion a year in revenue from suboxone while illegally blocking competition. Goldberg denied Indivior’s motion to dismiss the case in September on all five of the states’ claims, including Sherman Act claims for monopolization, attempted monopolization, conspiracy to monopolize, illegal restraint of trade, and individual state law claims.
But Goldberg said that the states’ amended complaint doesn’t state those claims directly against RBH. The states contended that they can treat RBH and Indivior as legally the same entity, since they were both subsidiaries of Beckitt Renckiser Group Plc. at the time of the alleged wrongdoing.
They aren’t legally the same, Goldberg said, because “RBH is simply a sister company to Indivior.” Just making suboxone film under contract for another company doesn’t give RBH any market power of its own, Goldberg said, and the states can’t impute Indivior’s market power to RBH.
Nor did the states allege that RBH by itself engaged in any anticompetitive conduct, Goldberg said. The complaint says that RBH simply worked to bring a suboxone oral film to market and participated in talks to pull the suboxone tablet off the market.
If RBH did nothing but work to bring a new product to market, that’s not illegal, Goldberg said. Allegations that RBH was involved in any conspiracy are also “sparse at best,” he added, and said there are no other bases for antitrust claims against RBH.
Without viable federal antitrust claims against RBH, the states also have no state law claims against the company.
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