Lamictal and the Myth of “Generic” “Pay-for-Delay” Cases
On April 22, 2020, the US Court of Appeals for the Third Circuit overturned a district court decision certifying a class of direct purchaser plaintiffs that purchased branded and generic versions of the pharmaceutical product Lamictal (lamotrigine), a treatment for epilepsy and bipolar disorder. This decision is notable because it includes an acknowledgment that the use of average prices may be highly misleading in cases where there are individual price negotiations, widespread use of discounting, and strategic pricing by sellers in the marketplace. Importantly, this decision involves the pharmaceutical industry, where at least some of those circumstances are commonly present for direct purchasers.
In this article, published in Law360, Edgeworth Partner Dr. George Korenko and Principal Consultant Dr. Tram Nguyen discuss three key issues cited in the Court of Appeals opinion and their implications for the economic analysis of predominance in the Lamictal case and in other pay-for-delay litigations.