in re Relafen Antitrust Litigation (D. Mass, May 12, 2004)
A Massachusetts district court has allowed (in-part) an end-payor class action suit against GlaxoSmithKline (GSK). (U.S. Patent No 4,420,639)
Background: In 2002 GSK’s lawsuit against generic Relafen (an NSAID) manufactures ended in an invalidity opinion that was affirmed by the Federal Circuit.
In the present suit,
the plaintiffs claim that but for SmithKline’s wrongful filing of patent lawsuits, consumers could have begun purchasing nabumetone in a competitive market — comprising both Relafen and its generic alternatives — as early as September 1998. Because of the pending litigation, however, the generic alternatives did not become available until after the stay period terminated and SmithKline’s patent was invalidated.
The court certified the following classes:
With respect to their antitrust and consumer protection claims
All persons or entities who purchased Relafen or its generic alternatives in the states of Arizona, California, Massachusetts, or Vermont during the period of September 1, 1998 through June 30, 2003 for consumption by themselves, their families, members, employees, insureds, participants, or beneficiaries.
and with respect to their unjust enrichment claims
All persons or entities in the United States who purchased Relafen in the states of Arizona, California, Massachusetts, Tennessee, or Vermont during the period September 1, 1998 through June 30, 2003 for consumption by themselves, their families, members, employees, insureds, participants, or beneficiaries.
Excluded from both classes were governmental entities; SmithKline and its officers, directors, management, employees, subsidiaries, and affiliates; persons or entities who purchased Relafen for purposes of resale; and persons or entities who purchased Relafen directly from SmithKline or its affiliates.