On July 11, 2022, the United States District Court for the District of Kansas approved a $264 million settlement against Mylan and certain of its subsidiaries in the case In Re EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices, and Antitrust Litigation in a matter broadly tagged as price-gouging litigation. Plaintiffs filed class action lawsuits against Mylan, the owner of EpiPen, and Pfizer, Inc., a manufacturer and seller of EpiPen, alleging, “anticompetitive conduct including, among other things: engaging in a ‘hard switch’ and selling EpiPens only in packs of two; entering into discount agreements with schools that were conditioned on the schools not purchasing competing products; securing multiple overlapping patents on minor changes to the EpiPen and engaging in ‘sham’ patent litigation to forestall generic competition; and paying excessive rebates to commercial insurance companies, pharmaceutical benefits managers, and state-based Medicaid agencies conditioned on those companies and agencies not reimbursing the use of competing products.” The plaintiffs claimed that the defendants broke various state antitrust laws and the federal civil RICO statute. The suits, filed in the Northern District of Illinois, the District of Kansas, the District of New Jersey, and the Western District of Washington, were joined in August of 2017 in the District of Kansas.

Mylan obtained the exclusive right to market, distribute, and sell EpiPen in the United States when it acquired Dey Pharma L.P. in 2007, and Pfizer is the sole supplier of Mylan  EpiPens. Mylan has increased the price of EpiPen since then, raising the price from $100 in 2007 to over $600 in 2016, despite the cost of an EpiPen dose of epinephrine remaining at around $1. Since 2009, Mylan has had over 80% of the market share of epinephrine auto-injector devices in the United States, and, in 2012, Mylan’s market share was close to 100%.

Prior to the settlement with Mylan, Pfizer settled with the plaintiff class on November 11, 2021 for $345 million.

Although there are no express price-gouging claims in this suit, it has been labelled as a price-gouging claim as the alleged anticompetitive conduct resulted in consumers forced to pay what have been identified as exorbitant prices for EpiPen. Plaintiffs claim that Mylan used tactics, including discount agreements and excessive rebates that dramatically raised the price of EpiPen.

Mylan is a defendant in a second proposed class action in the United States District Court for the District of Minnesota, along with a number of pharmacy benefit managers and their corporate parents, including Express Scripts, OptumRx, and CVS Caremark Part D Services. Plaintiffs, drug wholesalers Rochester Drug Co-Operative, Inc., and Dakota Drug, Inc., allege in that case that “Mylan paid bribes and kickbacks to a group of pharmacy benefit managers…to ensure that Mylan could raise the price of the EpiPen while keeping a monopoly share of the market.” On April 5, 2022, Judge Eric C. Tostrud dismissed all of plaintiffs’ claims against CVS Health Corporation, Express Scripts Holding Company, United Health Group, Inc., United Healthcare Services, Inc., United Healthcare, Inc., Optum, Inc, and OptumRx Holdings, LLC for lack of evidence, and dismissed many of the plaintiffs’ claims that Mylan engaged in bribery and paid kickbacks to the pharmacy benefit managers in violation of the Sherman Act and RICO. Judge Tostrud denied defendants’ motion to dismiss plaintiffs’ antitrust claims, asserting that there was enough evidence of antitrust violations to move forward to discovery.

Special thanks to summer associate Sarah W. Ghivizzani in the Washington, DC office for her contributions to this post.

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Photo of Christopher E. Ondeck Christopher E. Ondeck

Chris Ondeck is co-chair of the Firm’s nationwide Antitrust Group. He represents clients in civil and criminal antitrust litigation, defending mergers and acquisitions before the U.S. antitrust agencies, defending companies involved in government investigations, and providing antitrust counseling.

Chris has handled antitrust matters…

Chris Ondeck is co-chair of the Firm’s nationwide Antitrust Group. He represents clients in civil and criminal antitrust litigation, defending mergers and acquisitions before the U.S. antitrust agencies, defending companies involved in government investigations, and providing antitrust counseling.

Chris has handled antitrust matters for clients in a number of industries, including advertising, aerospace, alcoholic beverages, appliances, building materials, consumer products, defense, franchise, medical devices, metals, mining, natural resources, oil and gas, packaging, pharmaceuticals, software and telecommunications. He also has developed substantial experience advising clients regarding the application of the antitrust laws to the pharmaceutical industry, the agriculture industry, trade associations and the energy industry.

Photo of John R. Ingrassia John R. Ingrassia

John is a partner at the Firm, advising on the full range of foreign investment and antitrust matters across industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services consumer goods and health care. He is the first call clients make in matters relating…

John is a partner at the Firm, advising on the full range of foreign investment and antitrust matters across industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services consumer goods and health care. He is the first call clients make in matters relating to competition and antitrust, CFIUS or foreign investment issues.

For more than 25 years, John has counselled businesses facing the most challenging antitrust issues and helped them stay out of the crosshairs — whether its distribution, pricing, channel management, mergers, acquisitions, joint ventures, or price gouging compliance.

John’s practice focuses on the analysis and resolution of CFIUS and antitrust issues related to mergers, acquisitions, and joint ventures, and the analysis and assessment of pre-merger CFIUS and HSR notification requirements. He advises clients on issues related to CFIUS national security reviews, and on CFIUS submissions when non-U.S. buyers seek to acquire U.S. businesses that have national security sensitivities.  He also regularly advises clients on international antitrust issues arising in proposed acquisitions and joint ventures, including reportability under the EC Merger Regulation and numerous other foreign merger control regimes.

His knowledge, reputation and extensive experience with the legal, practical, and technical requirements of merger clearance make him a recognized authority on Hart-Scott-Rodino antitrust merger review. John is regularly invited to participate in Federal Trade Commission and bar association meetings and takes on the issues of the day.