Analysis Group Client GlaxoSmithKline Granted Summary Judgment in Wellbutrin XL Antitrust Litigation
September 25, 2015
On September 23, 2015, a U.S. district court judge in Pennsylvania granted Analysis Group's client GlaxoSmithKline (GSK) summary judgment in a long-standing antitrust lawsuit alleging that GSK entered into a reverse payment settlement agreement with generic drug manufacturers to delay the entry of generic versions of its antidepressant Wellbutrin XL. In an 89-page opinion, Judge Mary McLaughlin granted GSK's motion for summary judgment on all claims, noting that plaintiffs failed to establish "a proper foundation" for their claims under the rule of reason analysis mandated by the Supreme Court in its 2013 decision in FTC v. Actavis. The judge also granted GSK's motion to exclude the testimony of the plaintiffs' economic expert on antitrust liability because he "failed to analyze when and whether the generic manufacturers would have entered the market but for the Wellbutrin Settlement" and "failed to evaluate any procompetitive justifications for the Wellbutrin Settlement."
Analysis Group has provided economic consulting assistance to GSK in this litigation since 2011. Dr. Pierre Cremieux served as a testifying expert and was supported by Analysis Group senior staff members George Kosicki, Ted Davis, Mark Lewis, and Stephen Fink. Dr. Cremieux's analysis focused on the plaintiffs' flawed assumptions about the alleged reverse payment, the speculative nature of plaintiffs' alleged damages, and the sensitivity of plaintiffs' damages estimates to alternative generic entry dates. In 2014-2015, Analysis Group also provided economic consulting assistance to GSK in support of its motion to decertify the class of indirect purchaser plaintiffs. Dr. Bruce Strombom served as a testifying expert during this phase of the litigation and was supported by Dr. Kosicki and Mr. Fink. Dr. Strombom's analysis focused on plaintiffs' failure to put forward a reliable and administratively feasible methodology for ascertaining the members of the class. GSK's motion to decertify the class was granted on June 30, 2015. The judge also granted GSK's motion to exclude the plaintiffs' economic expert because she did not support her opinions and conclusions regarding the ascertainability of the class with "independent economic analyses."