Parties Argue Whether Court Should Remand, Transfer, or Toss Celgene Pay-for-Delay Case

On Wednesday, Celgene Corporation and its parent Bristol Myers Squibb Company filed an opposition to the plaintiffs’ motion for remand in an antitrust lawsuit alleging that the defendants overcharged the plaintiffs for two cancer treatments, Revlimid and Thalomid. The defendants had previously asked for dismissal for failure to state a claim upon which relief can be granted, or in the alternative, transfer.

Also on Wednesday, the plaintiffs, three affiliated health insurers and a fourth company, BCBSM, Inc., Health Care Service Corporation, Molina Healthcare, Inc., and Blue Cross and Blue Shield of Florida, Inc. argued against dismissal for lack of personal jurisdiction and for failure to state a claim upon which relief can be granted.

In their complaint, the plaintiffs chiefly contended that Celgene violated federal food and drug law and filed sham federal patent infringement lawsuits to delay the development of cheaper generic products in order to unlawfully maintain 100% share of the market for its two therapies. Celgene reportedly did so to retain the drugs’ monopoly profits.

Procedurally, the plaintiffs opted out of a class action in the District of New Jersey advancing the same legal theories. They then filed the instant suit in Minnesota state court and the defendants removed on federal question and diversity grounds. 

In their opposition to the plaintiffs’ motion for remand to state court, the defendants refreshed their plea for the court to first consider whether it has personal jurisdiction, as that question is dispositive. The defendants had previously contended that they do not have sufficient contacts with Minnesota to warrant such a finding. As for remand, the defendants argued that the court both has jurisdiction and that the case presents questions of federal law that must be decided by a federal court.

In their motion arguing against dismissal on the merits, the plaintiffs maintained that they have asserted viable federal antitrust and state consumer protection claims. In particular, the plaintiffs contended that they have successfully established that Celgene “engaged in an overarching, multi-pronged course of conduct by which it unlawfully obtained, maintained, and exercised monopoly power in the markets for Revlimid and Thalomid.” In addition, they asserted that they have stated a valid refusal to deal claim based on the defendants’ refusal to provide samples of the drugs to eight generic competitors without pro-competitive justification and by using an FDA risk prevention program as a pretext.

The motion to dismiss hearing is scheduled for Feb 10.

BCBS is represented by Bennerotte & Associates, P.A., Lowey Dannenberg, P.C., and Schneider Wallace Cottrell Konecky LLP, and Celgene by Jones Day and Williams & Connolly LLP.