OPINION & ORDER Before the Court are applications from various plaintiffs’ counsel seeking appointment as Interim Lead Counsel/Interim Co-Lead Counsel to represent the interests of the proposed End-Payor class, and a single application for appointment as Interim Lead Counsel to represent the interest of the proposed Direct Purchaser class, pursuant to Federal Rule of Civil Procedure 23(g). The Court appoints Sharon K. Robertson of Cohen Milstein Sellers & Toll LLC (“Cohen Milstein”) and Robin van der Muelen of Labaton Sucharow LLC (“Labaton Sucharow”) (together the “Cohen Milstein Group”) as Interim Co-Lead Class Counsel. The Court denies the motion to appoint Interim Co-Lead Class Counsel in the Direct Purchaser actions. I. Background The applications before the Court arise from a set of related lawsuits pending before the Court relating to allegations that Defendants engaged in an illegal scheme to delay competition in the United States and its territories from generic versions of Bystolic®, a prescription medication containing the active pharmaceutical ingredient nebivolol hydrochloride1 and approved by the U.S. Food and Drug Administration (“FDA”) for the treatment of hypertension. There are two sets of lawsuits before the Court. The first set of lawsuits comprises two actions brought by a single Corporation, J M Smith Corporation, filed on July 23, 2020 and September 1, 2020 respectively, which was a direct purchaser of Bystolic and generic equivalents bringing federal antitrust claims on behalf of a putative class of persons or entities who purchased Bystolic directly from any drug manufacturer.2 The second set of actions, filed shortly thereafter, is brought by indirect purchasers of Bystolic, which include consumers, health insurers, and welfare plans (“End-Payors”).3 Beginning on July 17, 2020, and continuing until September 12, 2020, 13 different End-Payor lawsuits were filed in this court, each on behalf of one or multiple corporate entities or individuals seeking to represent a class of persons and entities in the United States and its territories that purchased, paid and/or provided reimbursement for some of all of the purchase price of Bystolic, other than for resale, indirectly (i.e. did not purchase Bystolic directly from Defendants or their affiliates.). Each of the lawsuits is based on substantially identical facts, although the claims differ between the Direct Purchaser Actions and the End-Payor Actions: the former bring claims seeking damages under federal antitrust law while the latter bring claims under state antitrust, consumer protection, and unjust enrichment laws for damages and under federal antitrust law for injunctive relief only. In both sets of cases, Plaintiffs seek to recover damages arising from Forest’s alleged unlawful agreements with Hetero USA, Inc. and Hetero Labs Ltd. (“Hetero”); Torrent Pharmaceuticals Ltd. and Torrent Pharma, Inc. (“Torrent”); Alkem Laboratories Ltd. (“Alkem”); Indchemie Health Specialties Private Ltd. (“Indchemie”); Glenmark Generics Inc., USA, Glenmark Generics Ltd., and Glenmark Pharmaceuticals S.A. (“Glenmark”); Amerigen Pharmaceuticals, Inc. and Amerigen Pharmaceuticals, Ltd. (“Amerigen”); and Watson Pharma, Inc. and Watson Pharmaceuticals, Inc. (“Watson”) (collectively the “Settling Generics”) not to compete in the market for Bystolic in the United States and its territories. See City of Providence v. AbbVie Inc No. 20-cv-5538, Dkt. No. 1 (S.D.N.Y. July 17, 2020).4 Bystolic is a beta blocker. It blocks the effects of the hormone epinephrine, thereby causing the heart to beat more slowly and with less force, which in turn lowers blood pressure. Id. 1. In December 2011 — as soon as it was possible to do so — seven drug companies filed applications for FDA approval of generic versions of Bystolic. Id. 2. In March 2012, Forest sued them for infringement of U.S. Patent No. 6,545,040 (the “’040 patent”). Id. 5. Each generic company contended that its generic would not infringe the asserted patent claims or the claims were invalid. The complaints allege that the generic companies’ position in the patent litigation was very strong. Id. 7. An earlier patent had disclosed a nebivolol compound with a mixture of stereoisomers — different three-dimensional shapes of an organic compound — so the ’040 patent could not claim a nebivolol compound with the same mixture, or else it would be invalid for anticipation. Id.
104-105. But the generic companies’ drug products contained the disclosed mixture of stereoisomers. Thus, the argument is, either their products did not infringe the ’040 patent, or the ’040 patent was invalid. Nonetheless, between October 2012 and November 2013, Forest entered into settlement agreements with each of the Settling Generics, each of which required the Settling Generics to defer the launch of their generic Bystolic products until September 2021only three months before the expiration of the ’040 patent. Id.
