More Claims Fall in Painkiller Patch Suit

     SAN FRANCISCO (CN) – Going state by state, a federal judge dismissed a large swath of claims by unions nationwide that a settlement of patent claims for the painkiller patch Lidoderm kept a generic version off the market.
     Unions and other groups from across the United States sued drugmakers Endo, Teikoku Seiyaku and Watson Pharmaceuticals in various federal courts, claiming violations of the Sherman Antitrust Act as well as state antitrust and consumer laws and common-law unjust enrichment. The actions were consolidated into a multidistrict litigation case being heard by U.S. District Judge William Orrick in San Francisco.
     The drugmakers unsuccessfully lobbied Orrick in late 2014 to dismiss the action, although the judge did dump a number of state-law, consumer-protection claims made by groups who purchased Lidoderm on behalf of their members.
     Last month, Orrick thinned out more of the state-law claims, finding in some of the cases that states hadn’t passed repealer statutes and that unions couldn’t rely on generic consumer-law statutes to make their case.
     Other states don’t consider unions to be “consumers” for their consumer-protection laws, Orrick found at that time.
     On Tuesday, Orrick granted a dismissal request by end payors in Utah who plan to file their own lawsuit with a Utah resident as representative in the future. He also dismissed a case brought under Massachusetts law since the plaintiffs there never served the drugmakers with a required pre-suit notice.
     Going state by state, Orrick again found that numerous states either hadn’t passed repealer statutes to allow antitrust claims to go forward or that as indirect purchasers, the unions had no standing to bring claims under their states’ consumer-protection schemes.
     The judge also found once again that the drugmakers’ actions did not rise to the level of fraud as laid out by states’ laws.
     He also dismissed the bulk of the unions’ unjust enrichment claims, save the few states that allow the cause of action – Arizona, the District of Columbia, Kansas, North Carolina and Tennessee.
     As before, Orrick allowed consumer-protection claims from New York and North Carolina to stand, finding the unions there had adequately alleged intrastate commerce activities by the drugmakers.

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