Utesch v. Lannett Co.

316 F. Supp. 3d 895
CourtDistrict Court, E.D. Pennsylvania
DecidedJuly 31, 2018
DocketCIVIL ACTION NO. 16-5932
StatusPublished
Cited by3 cases

This text of 316 F. Supp. 3d 895 (Utesch v. Lannett Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Utesch v. Lannett Co., 316 F. Supp. 3d 895 (E.D. Pa. 2018).

Opinion

Wendy Beetlestone, District Judge.

*898This is a putative securities class action centered on alleged misstatements and omissions made by Lannett Company, Inc., a pharmaceutical company, and its Chief Executive Officer Arthur P. Bedrosian and Chief Financial Officer Martin P. Galvan. Lead Plaintiff, the University of Puerto Rico Retirement System, avers that Defendants misrepresented the nature of price competition for certain generic drugs that Lannett produced. Defendants allegedly colluded with other manufacturers to price-fix certain generic drugs, all while simultaneously touting Lannett's legal compliance to investors.

Plaintiff asserts securities fraud claims under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder against all Defendants, as well as individual claims under Section 20(a) against Bedrosian and Galvan. 15 U.S.C. § 78j(b) ; 17 C.F.R. § 240.10b-5 ; 15 U.S.C. § 78t(a). All of its securities fraud claims turn on an underlying allegation that Defendants violated antitrust laws. Defendants move to dismiss all of the claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Plaintiff has failed to adequately plead scienter in support of its claims. For the reasons that follow, Defendants' motion is granted.

I. FACTUAL ALLEGATIONS

Lannett is a pharmaceutical corporation that manufactures drugs. Plaintiff alleges that Lannett colluded with other manufacturers to fix the price of several generic drugs, including Doxycycline Monohydrate ("Doxy Mono"), Digoxin, Levothyroxine Sodium ("Levothyroxine"), Acetazolamide, and Ursodiol (collectively, "Generic Drugs"). Lannett derives the majority of its revenue from the sale of the Generic Drugs. Plaintiff seeks to recover on behalf of the class for alleged damages it suffered as a result of Defendants' misstatements and omissions from May 9, 2013 to October 31, 2017 (the "Class Period").

a. Lannett's Alleged Participation in Generic Drug Cartel

Before the relevant time period of this dispute, Lannett allegedly suffered financial troubles. From 2003 to 2006, its net sales never exceeded $65 million, but rose and fell by about $20 million each year. Consequently, Bedrosian developed a growth strategy in which Lannett would acquire companies and absorb their product lines. Plaintiff alleges that to finance its acquisition strategy, Lannett colluded with other generic drug manufacturers. According to Plaintiff, this collusion led to wildly successful results. In 2017, for instance, Lannett's net sales skyrocketed to $637 million.

Plaintiff avers that Lannett entered into a cartel with other manufacturers "performing two unique but related types of anticompetitive acts." The first, according to Plaintiff, is "market allocation, which allow[s] generic drug manufacturers to control and divide customer accounts amongst themselves." The second is alleged price-fixing that inflated the prices of generic drugs.

Plaintiff derives many of its allegations of anticompetitive behavior from a complaint filed by various State Attorneys General. The complaint, in turn, alleges a "common understanding" among generic drug manufacturers that they would each have a market share for a particular drug. This scheme partially relied on phone calls *899and text messages among the manufacturers discussing pricing strategy. Lannett and its various co-conspirators allegedly colluded to price-fix the Generic Drugs as follows.

i. Doxy Mono

Doxy Mono is an oral medicine used to treat bacterial infections and to prevent malaria. Heritage Pharmaceuticals, a purported co-conspirator of Lannett's, learned from a customer that the demand for Doxy Mono was going to increase. Heritage then "decided to reach out to [Lannett] for the purpose of coordinating their price hikes." In turn, Lannett, Heritage, Mylan, and Par Pharmaceuticals - all competitors in the Doxy Mono market - colluded to fix the price of Doxy Mono. They did so by inter-firm communications, as well as discussions by employees at industry conferences and trade shows. On April 22, 2014, the president of Heritage identified various drugs that would be subject to a price increase and arranged for a phone call among its sales team. During the phone call, the president instructed the sales team to reach out to contacts at each competitor for these various drugs and agree on a price increase. After the phone call, a member of the Heritage sales team called a Lannett employee, and the two agreed to raise the price of Doxy Mono.

ii. Digoxin

Digoxin treats heart conditions. Plaintiff alleges that Lannett and another seller of Digoxin, Impax Pharmaceuticals, "represented a substantial portion of the generic market" of the drug. For instance, in 2013, Lannett and Impax had roughly 96% of all Digoxin sales. From October 28, 2013 to October 30, 2013, Impax, Lannett, and Par attended a conference for generic drug manufacturers and distributors. After the conference in November 2013, both Lannett and Impax increased Digoxin prices by over 700%. The increase in price was, according to Plaintiff, the "first significant price increase ... in more than four years." As a result of Lannett's alleged collusive behavior with Impax, "market sales of Digoxin in 2014 increased almost threefold to $577 million from $198 million in 2013." Plaintiff claims that the increased revenue can only be attributed to the coordinated price increase by Lannett and its co-conspirator.

iii. Levothyroxine

Levothyroxine treats hypothyroidism and other thyroid-related conditions. Plaintiff avers that, during the Class Period, the market for Levothyroxine"was highly concentrated among four manufacturers": AbbVie US LLC, Mylan N.V., Lannett, and Sandoz. During the Class Period, Lannett controlled about 16% of the market for Levothyroxine. As a result of this "highly concentrated" market, the average price for Levothyroxine increased about 100% from August 2013 to August 2014. Plaintiff alleges that the four manufacturers colluded based on the lock-step manner in which they raised their prices.

iv.Acetazolamide

Acetazolamide treats glaucoma, epilepsy, altitude sickness, paralysis, and heart failure. According to Plaintiff, the only two producers during the Class Period of Acetazolamide tablets were Lannett and Taro Pharmaceuticals. Although Lannett initially dropped its price to take more market share away from Taro, during the Class Period Lannett and Taro increased the price of Acetazolamide by about 500%. Lannett and Taro made this price increase following a healthcare conference. As Plaintiff contends, the price increase "could only reasonably be explained as the result of collusive behavior."

v. Ursodiol

Ursodiol treats gallbladder stone dissolution.

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Bluebook (online)
316 F. Supp. 3d 895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/utesch-v-lannett-co-paed-2018.