NEW ORLEANS – Pharmaceutical giant GlaxoSmithKline is attempting to have an antitrust lawsuit filed by the Louisiana Attorney General’s Office last December thrown out claiming it is a copycat of a similar class action lawsuit settled in 2013.
In December Louisiana Attorney General James “Buddy” Caldwell filed an antitrust lawsuit against GlaxoSmithKline (GSK) over claims the pharmaceutical company conspired to delay generic versions on its popular nasal spray Flonase. The suit alleged that Louisiana state employees covered by a government health plan to paid more than necessary for the medication. However, earlier this month attorneys for GSK filed a motion in the Eastern District of Pennsylvania, where a similar case was heard and settled in 2013 for $21.5 million in which GSK did not admit fault, saying the litigation brought by Caldwell was meant to satisfy all potential class members.
In its filing, GSK said Caldwell’s lawsuit was word for word the same as the previous litigation.
“[T]he State’s Petition is a verbatim copy of a prior federal antitrust class action lawsuit involving Flonase that was litigated in the Eastern District of Pennsylvania for five years. Moreover, that Court retained ‘exclusive and continuing jurisdiction’ over the class settlement in that case, and the State’s claims are encompassed within that settlement,” GSK’s filing states.
In addition to seeking damages for an issue that was previously litigated, GSK says Louisiana does not have legal standing to seek damages on behalf of its citizens because they are challenging a federal process. GSK’s attorneys point out that at issue is the pharmaceutical company’s objection to the federal Food and Drug Administration on the safety of generic versions of Flonase that were delayed due to petitions filed by the company against the sanctioning of generics between 2004 and 2006.
“[T]he federal issues raised by the State’s Petition are not typically left to the States to resolve, and therefore the resolution of these issues in federal court would not disturb the balance between federal and state judicial responsibilities. It is rare for plaintiffs to assert antitrust claims only under state law. And it is even more rare for a State to seek to impose liability on a company solely based on its filings with a federal agency and the actions taken by that federal agency,” GSK attorneys said in a court filing.
The Louisiana Attorney General’s Office initially filed the lawsuit in the 19th Judicial District Circuit in East Baton Rouge before it was remanded to the Middle District of Louisiana. Attorneys for GSK have asked the Eastern District of Pennsylvania to disallow the Louisiana Attorney General’s Office from pursuing the litigation further by subjecting it to the earlier court decision, which, if successful, would effectively kill any chance for the state to recover damages.
However, Aaron Sadler, communications director for the Louisiana Attorney General, said that Caldwell feels the state’s case is merited and should be allowed to continue.
“Louisiana’s suit against GSK is based on the same anti-competitive actions that formed the basis of the private class action, but the State of Louisiana was not a party to that private action. As our responsive pleadings will show, the state still has a number of viable claims against GSK that have not been resolved by any prior suit,” he said.
Caldwell has been the focus of several critics for bringing lawsuits against large corporations by using outside law firms, some of which have financial connections to his office via campaign contributions. Through this method Caldwell has sued several corporations on behalf of the state capturing hundreds of millions in damage awards of which outside firms received a percentage.
In his case against GSK, Caldwell has obtained the services of several outside law firms, many of whom are a who’s who of the state’s top plaintiffs firms, including Baton Rouge-based Shows Cali & Walsh LLP, Natchitoches-based Salim-Beasley LLC, New Orleans-based Meade Law LLC, Opelousas-based Morrow Morrow Ryan & Bassett, New Orleans-based Kanner & Whiteley LLC, Baton Rouge-based Hammonds Sills Adkins & Guice LLP and New Orleans-based Usry Weeks & Mathews APLC to assist in representing the state. Together, lawyers and associates of these firms have donated a combined $37,360 to Caldwell’s past election campaigns.
This year is a particularly important one for Caldwell as he is facing a number of challengers in his bid for reelection. The crowded field of candidates includes former Congressman Jeff Landry who has already come out in favor of increased fiscal responsibility and professional behavior expected of the Louisiana Attorney General’s Office.