By Kelly Knaub
Law360, New York (April 20, 2015, 4:57 PM ET) — Plaintiffs in a pay-for-delay putative class action against Shire U.S. Inc. over attention deficit hyperactivity disorder drug Adderal XR asked a Florida federal judge to order the company to turn over certain documents, saying the materials aren’t privileged as Shire claims.
Attorneys for plaintiffs told Florida's Southern District that Shire's "willingness to assert dubious claims of privilege is well-documented," saying it previously removed privilege assertions for a large number of documents that it had withheld from the Federal Trade Commission during a seven-year investigation after pressure from plaintiffs and the court.
And that is only one example, plaintiffs contend. Furthermore, they argue that even if the court determines that certain documents are privileged on their face, the crime-fraud exception applies. The documents in question include emails from Shire's in-house counsel, logs of handwritten notes by non-attorney negotiators and other materials.
"Shire intended and completed a fraud with these reverse payment settlements, and used the advice of counsel to perpetrate that fraud," the motion states. "Shire has forfeited the attorney-client and work product privileges."
In August, Shire urged the court to toss the case, arguing that although the consumer plaintiffs contend that Shire conspired to delay generic competition to Adderall, they also acknowledge that the pharmaceutical giant supplied generic versions of the Adderall to other companies for sale in Florida beginning in 2009.
The company further asserted that the plaintiffs’ pre-April 2009 claims are blocked by the statute of limitations, and alleged that the consumers failed to factually back up their claim that Shire’s patent suits were sham litigation meant to delay competition.
Along with its dismissal bid, Shire also sought summary judgment on all of the plaintiffs’ claims, arguing they lacked standing. Specifically, Shire claimed that regarding the plaintiffs’ pre-April 2009 claims, the company never "forced" them to purchase branded Adderall rather than generic versions.
The consumers brought the suit in April 2013, alleging that Shire inked so-called pay-for-delay settlements with Teva Pharmaceuticals USA Inc. and Impax Laboratories Inc. to resolve allegations that their efforts to market a generic version of Adderall would violate Shire’s patents.
According to the plaintiffs, those infringement cases were a sham - part of a broader scheme to first delay the entry of generic competition, and then to restrict generic rivals by failing to supply Teva and Impax with as much of its authorized generic version of the drug as promised under the settlements.
The suit brought claims under the Florida Deceptive and Unfair Practices Act, and premised several of the claims on state and federal antitrust law.
Attorneys for the parties did not immediately return a request for comment on Monday.
Plaintiffs are represented by Brian T. Ku, Louis Mussman and M. Ryan Casey of Ku & Mussman PA, Conlee Whiteley and John R. Davis of Kanner & Whiteley LLC and , Richard M. Golomb and Kenneth J. Grunfeld of Golomb Legal, P.C.
Shire is represented by David A. Zwally, Edgar H. Haug, John F. Collins, Porter F. Fleming, and Michael F. Brockmeyer of Frommer Lawrence & Haug LLP, and Eric Christu and Daniel Barskey of Shutts & Bowen LLP.
The case is Barba et al. v. Shire U.S. Inc. et al., case number 1:13-cv-21158, in the U.S. District Court for the Southern District of Florida.
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