United Healthcare Files Against Merck for Zetia Pay-For-Delay
On September 4, 2020, United Healthcare filed a complaint against Merck, Glenmark, and Par (“the Defendants”) alleging that they conspired to prevent would-be generic competitors to Zetia (a lipid-lowering medication). This is also the subject of several pending class actions, which have been consolidated in an MDL in the Eastern District of Virginia.
The complaint alleges defendants violated the antitrust laws by entering into a “reverse payment” agreement in May 2010 whereby Glenmark agreed to drop its meritorious patent challenge against Merck in exchange for a payment from Merck and an agreement by Glenmark and Par not to launch a generic competitor to Zetia until December 12, 2016. When Glenmark and Par finally did launch a generic in late 2016, Merck refrained from launching its own generic to compete with Glenmark and Par for six months. This appears also to be a condition of the illegal reverse payment agreement. The net result of Defendants’ agreement was to keep the price of Zetia artificially high from May 2010 through December 2016, during which time a generic could otherwise have been brought to market and driven prices down through competition.
The Defendants’ motions to dismiss the class actions in the MDL were denied and summary judgment briefing is currently underway. It appears that United Healthcare may have filed in advance of a possible statute of limitations issue on December 12, 2020—four years after the expiration of the Defendants’ agreement not to bring a generic to market. Companies who paid all or part of the purchase price for Zetia, including on behalf of their insureds, from May 2010 through December 2016 should evaluate the size of their purchases and consider filing suit.
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In re: Zetia (Ezetimibe) Antitrust Litigation, No. 2:18-md-02836 (E.D. Va.)