Mylan and Pfizer failed to dispatch a lawsuit that accuses the two companies of a massive, far-ranging scheme to pump up sales of the epinephrine auto-injector EpiPen, which Pfizer manufactures for Mylan to sell.
The two companies persuaded a judge to toss out a few—but far from all—of the class action claims in a 400-page lawsuit that cites antitrust and consumer protection laws and the Racketeer Influenced and Corrupt Organizations Act. U.S. District Judge Daniel Crabtree nixed a small set of allegations, including a variety of state-law claims. The companies on Tuesday said they'll defend against the remaining claims, which remain unproven.
The plaintiffs—an employee health plan plus consumers—say Mylan and Pfizer's EpiPen dealings make up "one of the most egregious examples of corporate malfeasance in our nation's history." Over hundreds of pages in the lawsuit, they lay out the ways they claim Mylan and Pfizer broke the law as they worked to build and protect EpiPen sales.
For instance, the plaintiffs say Mylan paid pharmacy benefits managers to freeze out competition and that both companies used the courts—and abused regulatory processes—to protect EpiPen. They allege Mylan rolled out EpiPen two-packs and stopped selling them in singles, forcing buyers to switch—and pay more—with no medical rationale. And they cite the well-known and dramatic price hikes Mylan engineered over the past several years.
In statements Tuesday, representatives for Pfizer and Mylan said the companies believe the remaining claims are "without merit" and that they will defend against them "vigorously."
"Because a ruling on a motion to dismiss requires the judge to assume the allegations made in the complaint to be true, the court did not rule on the merits and the plaintiffs must still ultimately prove the claims that remain in the case," Mylan's representative added.
Back in 2016, Mylan came under pressure for EpiPen price hikes in a controversy that ended up costing the company sales and a hit to its reputation. The scandal was among several that spawned a new wave of attention to pharma’s pricing practices that’s still playing out, recently with the Trump Administration’s “blueprint” to lower drug costs.
Pfizer supplies EpiPen to Mylan under licensing agreements between the drugmakers.
In its motion to dismiss, Pfizer said plaintiffs “did not, and cannot, plead any facts making plausible that any alleged anticompetitive conduct by Pfizer caused Plaintiffs’ purported injury.” The company made several other arguments against the allegations, including jurisdiction arguments. Mylan argued that the plaintiffs failed to support an antitrust claim or a RICO claim and that their other claims fell short.
Only days ago, the FDA approved the first generic EpiPen—from Teva Pharmaceutical Industries—in a development that should save consumers money at the pharmacy counter.