United States District Court, S.D. New York
IN RE NAMENDA DIRECT PURCHASER ANTITRUST LITIGATION
E. Gerstein, Esq. Dan Litvin, Esq. Joseph Opper, Esq. Noah H.
Silverman, Esq. Kimberly M. Hennings, Esq. Garwin Gerstein
& Fisher, L.L.P.
Heather McDevitt, Esq. Jack Pace, Esq. Peter J. Carney, Esq.
Martin M. Toto, Esq. Kristen 0'Shaughnessy, Esq. Ryan P.
Johnson, Esq. Michael E. Hamburger, Esq. Charles C. Moore,
Esq. White & Case LLP
M. Gidley, Esq. White & Case LLP (DC)
C. Adam, Esq. White & Case LLP
Heather M. Burke, Esq. White & Case LLP
MEMORANDUM AND ORDER
C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE.
plaintiffs in this putative class action allege, in relevant
part, that the defendants - Actavis pic (now known as
Allergan pic), Forest Laboratories, LLC, Forest Laboratories,
Inc., and Forest Laboratories Holdings Ltd. (together,
"Forest") - schemed to delay entry of generic
versions of the brand-name Alzheimer's disease treatment
Namenda IR by entering into collusive settlements with
various generic drug companies. Before me now is a motion to
compel concerning a residual dispute following my decision of
May 19, 2017, which found that Forest had not (yet) waived
protection of attorney work product or attorney-client
communications by putting them at issue. In re Namenda
Direct Purchaser Antitrust Litigation, No. 15 Civ. 7488,
2017 WL 2226591 (S.D.N.Y. May 19, 2017). At this time, the
plaintiffs' motion to compel is denied.
noted in my earlier opinion, the plaintiffs contended that a
number of Forest's central defenses in this action relied
on Forest's assessment of the legal merits of the
underlying patent litigation between Forest and the generic
drug companies, which would implicate counsel's advice.
Id. at *2. Forest countered that it “ha[d] not
yet necessarily injected [into this litigation] its
subjective views of the strength of the [relevant] patent or
of its litigation positions in the [underlying] infringement
action, ” noting that it could support its defenses
with “objective evidence, ” such as the
presumption of patent validity, the prosecution history of
the patent, and factual material from the patent litigation.
Id. at *4.
that, given the “stage of discovery and Forest's
representations, I [could not] determine that Forest ha[d]
broadly waived attorney-client privilege and work product
protection.” Id. at *5. Adopting a strategy
used in In re Lidoderm Antitrust Litigation, No.
14-md-2521, 2016 WL 4191612 (N.D. Cal. Aug. 9, 2016), I
required Forest to “disclose any subjective beliefs it
will rely on in its defense of this action.”
Namenda, 2017 WL 2226591, at *5.
did so, asserting that it would rely on “evidence from
its current or former business executives or employees”
to rebut (1) argument that its business deals were
“motivated by illegitimate or anti-competitive
justifications, ” (2) allegations that “its
conduct with respect to the Namenda patent litigations was
anything but routine behavior” under the patent regime
governing entry of generic drugs into the market, and (3)
allegations that “the Namenda IR patent litigation
settlement agreements provided generic competitors any
consideration beyond the express terms of each of the final
agreements.” (Forest's Disclosure Pursuant to the
May 19, 2017 Memorandum and Order (“Def.
Disclosure”), attached as Exh. A to Memorandum in
Support of Direct Purchaser Plaintiffs' Motion to Compel
Production of Documents (“Pl. Initial Memo.”), at
plaintiffs promptly filed a motion to compel seeking an
“Order finding that [Forest] may not withhold factual
information regarding its subjective intent evidence”
even if that factual information “is embedded in
attorney-client communications and/or attorney
documents.” (Pl. Initial Memo. at 3, 9). In response,
Forest asserted that it had repeatedly committed to producing
non-privileged documents responsive to the plaintiffs'
requests, including redacted versions of documents containing
privileged information, and that it had never argued that
“non-privileged facts become privileged when
communicated to a lawyer.” (Defendants' Opposition
to Direct Purchaser Plaintiffs' June 15, 2017 Motion to
Compel Production of Documents (“Def. Initial
Memo.”), at 4, 6-7). Forest also made the (accurate)
point that it had neither completed production nor produced a
privilege log and so the plaintiffs'
“dispute” was not “ripe for the Court's
review.” (Def. Initial Memo. at 7). In light of
Forest's representation that it would produce a privilege
log on or before June 30, 2017, and would make significant
production of documents in the surrounding weeks (Def.
Initial Memo. at 7), I deferred resolution of the
plaintiffs' motion. In mid-July, I requested that the
parties update the briefing of the motion in light of the new
plaintiffs' new submission focuses on Forest's
argument that its business deals were not motivated by
illegitimate or anticompetitive justifications, for which it
“anticipates presenting evidence from its current or
former executives or employees concerning the business
considerations, rationales, and reasons for entering into the
[settlement] agreements with [generic producers] Mylan and
Orchid.” (Def. Disclosure at 4). The plaintiffs contend
that because this defense “place[s] at issue what
Forest's management actually believed about the value and
purpose of the deals, ” Forest must produce
“factual information about such beliefs [that] are
contained in attorney-client communications or
attorney-created documents.” (Supplemental Memorandum
in Support of Direct Purchaser Class Plaintiffs' Motion
to Compel Production of Documents (“Pl. Supp.
Memo.”) at 2).
in their initial submissions, where they “failed to
cite a single document . . . that they believe is
problematic” (Def. Initial Memo. at 7), the plaintiffs
have now identified three documents or types of documents to
support their hypothesis that Forest is improperly
withholding information. The first is a draft slide
presentation for a Mylan settlement meeting, which Forest
inadvertently produced and then clawed back. (Pl. Supp. Memo.
at 2-3). The second comprises up to 295 charts and
spreadsheets containing financial analyses relevant to
“the cost, value, and purpose of the amendments to a
prior Lexapro distribution and supply agreement, which [the]
[p]laintiffs contend was a vehicle that Forest used to make a
‘reverse payment' to Mylan as part of the Namenda
patent settlement.” (Pl. Supp. Memo. at 1, 3-4). This
group includes a set of spreadsheets regarding the Lexapro
amendment that was produced twice -- once in full and again
with redactions. (Pl. Supp. Memo. at 3; Declaration of Dan
Litvin dated July 24, 2017, Exhs. A & B). The third is an
email from a former Forest in-house lawyer to Forest business
executives “describing negotiations with Orchid
regarding the Namenda patent-suit settlement” and a
side deal concerning the drug Ceftaroline. (Pl. Supp. Memo.
at 4). The plaintiffs suppose that the redactions in this
email hide unprivileged factual information concerning