Generic Drug "Sham" Litigation Claim Accrues on Date of Competitor Drug Approval


Medical Mutual of Ohio, Inc. (“MMOH”), a medical insurer, brought an antitrust class action on behalf of similarly situated indirect purchasers of a constipation drug produced by Braintree Laboratories (“Braintree”) in Delaware federal court. The class action claim arose from a patent infringement case filed by Braintree against a generic drug maker, Schwartz Pharma, Inc. (“Schwartz”), in 2003. The patent case was dismissed and Schwartz’s generic drug was approved soon after the dismissal. MMOH later asserted that Braintree’s suit against Schwartz was a “sham litigation” designed to extend Braintree’s monopoly over the constipation drug market. Braintree moved to dismiss, arguing that MMOH’s claim was time-barred.

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