California Judge Denies Summary Judgment to Both Parties in Glumetza Antitrust Suit

The Northern District of California on Thursday denied summary judgment to both parties in a consolidated antitrust class action over diabetes drug Glumetza.

The plaintiffs at the helm of the class, including pharmaceutical retailers such as Meijer and Walgreens, filed suit in September 2019 against a handful of drug manufacturers for allegedly colluding to inflate the price of Glumetza to be over 50 times more expensive than the competitive price, “steal(ing) more than $2.8 billion from Glumetza purchasers,” according to the complaint. The defendants allegedly accomplished this through a “pay for delay” scheme: Glumetza manufacturer Depomed Inc. paid Lupin Pharmaceuticals Inc. — which had plans to enter the market with a generic competing product — to delay bringing its product to market after the companies settled a patent litigation, according to the plaintiffs.

The court denied the plaintiffs’ operative motion for partial summary judgment, opining that a “reasonable trier” may see that the defendants wielded significant market power during the relevant period, but the same trier may also find the “evidence of cross-elasticity of demand” among Glumetza and “the many, and more prevalent” viable competing products to be compelling.

In denying the defendants’ motion for summary judgment, the court reasoned that a trier could find that the defendants engaged in anticompetitive acts through “horizontal restraints on competition mirror(ing) classic per se antitrust violations,” although the defendants claimed that their conduct was protected under their intellectual property rights.

“A reasonable trier of fact could further conclude that defendants’ restraint of the market delayed generic entry, stifled competition, and caused plaintiffs to pay more for brand and generic Glumetza than they would have otherwise,” the court said.

With no shortage of material factual disputes, the court reasoned, the proceedings must continue.

Hagens Berman Sobol Shapiro LLP and Sperling & Slater P.C. represent the plaintiffs. Counsel for the defendants include: Cravath, Swaine & Moore LLP, Arnold & Porter Kaye Scholer LLP, Gibson, Dunn & Crutcher LLP, Lowenstein Sandler LLP, Winston & Strawn LLP, and Goodwin Procter LLP.