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Case 3:11-cv-05661-JAP-LHG Document 123 Filed 10/23/12 Page 1 of 4 PageID: 1063
In re EFFEXOR XR ANTITRUST : Lead Case No.
Plaintiffs in the above-captioned actions bring claims against Wyeth LLC and certain
related entities (collectively, “Wyeth”), Teva Pharmaceuticals, USA and Teva
Pharmaceuticals Industries Ltd. (together, “Teva”) (Wyeth and Teva, “Defendants”) alleging
violations of federal antitrust law, state antitrust law and consumer protection statutes relating
to Wyeth’s pharmaceutical product Effexor XR, an encapsulated extended release version of
the compound venlafaxine hydrochloride. The complaints allege that Wyeth unlawfully
monopolized and unreasonably restrained competition in the market for extended release
venlafaxine hydrochloride by, among other things, listing allegedly fraudulently procured
patents in the Orange Book, asserting these patents in a number of infringement suits that
plaintiffs claim were without basis, and allegedly conspiring with generic manufacturer Teva
to extend Wyeth’s monopoly by entering into settlement agreements that plaintiffs alleged
were improper reverse payment agreements.
On July 16, 2012, the Court of Appeals for the Third Circuit issued its decision in In
re K-Dur Antitrust Litigation
, 686 F.3d 197 (3d Cir. 2012) (hereinafter “K-Dur
Case 3:11-cv-05661-JAP-LHG Document 123 Filed 10/23/12 Page 2 of 4 PageID: 1064
involved among other things, an antitrust challenge to a patent litigation settlement agreement
between a brand-name pharmaceutical manufacturer and a generic manufacturer. With
respect to reverse payment settlements, the Third Circuit in K-Dur
created a circuit split by
rejecting the “scope of the patent” test adopted by several other circuit courts, and held that
“any payment from a patent holder to a generic patent challenger who agrees to delay entry
into the market [is] prima facie
evidence of an unreasonable restraint of trade,” rebuttable “by
showing that the payment (1) was for a purpose other than delayed entry or (2) offers some
pro-competitive benefit.” Id.
at 218. Certiorari petitions with respect to the Third Circuit’s
decision have been filed, see
Petition for Writ of Certiorari, Merck & Co. v. La. Wholesale
, No. 12-245 (Aug. 24, 2012); Petition for Writ of Certiorari, Upsher-Smith Labs.
Inc. v. La. Wholesale Drug Co.
, No. 12-265 (Aug. 29, 2012), and presently before the Court is
a motion by Wyeth and Teva to stay this matter pending resolution of the proceedings before
In support of their motion, Defendants argue that a stay of this matter favors the
interests of judicial economy in that, given Plaintiffs’ argument that the pending motions to
dismiss must be denied under K-Dur
, it will allow for the resolution of the legal uncertainties
that exist in light of the circuit split and pending certiorari petitions. Defendants further assert
that a Supreme Court decision in K-Dur
will simplify consideration of and potentially
eliminate Plaintiffs’ claims under Section 1 of the Sherman Act.
Plaintiffs, on the other hand, oppose a stay. They argue that a stay is not warranted
because a Supreme Court decision in K-Dur
will not resolve all of Plaintiffs’ claims and,
Case 3:11-cv-05661-JAP-LHG Document 123 Filed 10/23/12 Page 3 of 4 PageID: 1065
further, that Plaintiffs want their day in court before “[t]ime erases memories,” witnesses
become unavailable, and documents get misplaced. Pl. Brf. at 16.
There is no dispute that a district court has “broad power to stay proceedings.” Bais
Yaakov of Spring Valley v. Peterson's Nelnet, LLC
, No. 11-11, 2011 WL 4056318 (D.N.J.
2011) (quoting Bechtel Corp. v. Local 215 Laborers' Int'l Union of N. Am.
, 544 F.2d 1207,
1215 (3d Cir. 1976)). In determining whether to stay a matter, a court will consider “whether
a stay will simplify issues and promote judicial economy, the balance of harm to the parties,
and the length of the [ ] stay.” Id.
at * 2. (alteration in original) (quoting McDonald v.
Novartis Pharms., Corp.
, No. 07–0655, 2007 WL 4191750, at * 1 (D.N.J. Nov.20, 2007)).
The Court has considered these factors and finds that a stay is appropriate at this time.
A stay will allow for the potential simplification the issues in this case and promote judicial
economy, as a Supreme Court decision may clarify the standard that, according to Plaintiffs,
governs their reverse payment theories of recovery. Moreover, should the Supreme Court not
grant the certiorari petition, the stay will be relatively short. Should the Court grant the
petition, however, a lengthier stay is justified. While the Court appreciates Plaintiffs’ desire
for prompt resolution of their claims, Plaintiffs have not pointed to any alleged prejudice that
the Court concludes outweighs the interests of judicial efficiency here. Consequently,
ORDERED that Defendants’ motion to stay is GRANTED; and it is further
ORDERED that the above-captioned actions are hereby STAYED pending the
conclusion of the proceedings in the United States Supreme Court in In re K-Dur Antitrust
Case 3:11-cv-05661-JAP-LHG Document 123 Filed 10/23/12 Page 4 of 4 PageID: 1066
ORDERED that this matter, and all pending motions, shall be ADMINISTRATIVELY
TERMINATED by the Clerk, and it is further
ORDERED that, should the Supreme Court grant certiorari and, in doing so, limit the
issues to be heard in such a way that a continued stay of this matter is no longer justified, either
party may petition the Court to lift the stay at that time; and it is further
ORDERED that the parties shall notify the Court of the conclusion of the proceedings
in the Supreme Court in In re K-Dur Antitrust Litigation
with seven days of such conclusion.
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