As co-lead counsel representing health insurer Aetna U.S. Healthcare and a class of insurers and individual consumers, Berman Tabacco brought the first action centered on so-called “reverse payments” between a brand name drug maker and a generic drug maker and obtained an $80 million settlement from French-German drug maker Aventis Pharmaceuticals and the Andrx Corporation of Florida. The payment to consumers, state agencies and insurance companies settled claims that the companies conspired to prevent the marketing of a less expensive generic version of the blood pressure medication Cardizem CD. This was the first time that consumers received direct compensation in a generic drug “pay for delay” case. The state attorneys general of New York and Michigan joined the case in support of the class.
In addition, the firm achieved a significant appellate victory in a pioneering ruling regarding the “reverse payment” by a generic drug manufacturer to the brand name drug manufacturer that held that the brand name drug manufacturer’s payment of $40 million per year to the generic company for the generic to delay bringing its competing drug to market was a per se unlawful market allocation agreement. In re Cardizem CD Antitrust Litigation, 332 F.3d 896 (6th Cir. 2003). This victory still shapes the ongoing antitrust battle over competition in the pharmaceutical market.