A recent Law 360 story by Rose Krebs, “Firm Wins $3M in Fees in Hartig Product-Hopping Suit,” reports that a Delaware federal judge awarded Frank LLC, Prickett Jones & Elliott and Hausfeld LLP $3 million in attorneys' fees in connection with Hartig Drug Co.'s suit settled earlier this year against Allergan Inc., Senju Pharmaceutical and Kyorin Pharmaceutical over claims the companies engaged in product-hopping for eye treatment products.  In an order made public, U.S. District Judge Joseph F. Bataillon signed off on the award of $3 million in attorneys’ fees and $93,483 for litigation expenses to the firms, and a $10,000 incentive to Hartig as part of the $9 million settlement reached by the parties in February.

In his brief order, Judge Bataillon noted that the motion seeking payment of the fees, expenses and incentive was not opposed by the pharmaceutical companies.  In its motion to the court, Hartig had contended the award of attorneys’ fees — about 33 percent of the total settlement — was in line with other antitrust class actions settled for similar amounts.  The parties announced the settlement in February to resolve Hartig’s lawsuit filed in 2014 contending that Allergan, Senju and Kyorin violated antitrust laws by selling Zymaxid, a slightly different version of Zymar, in order to keep generic versions of the pink-eye treatment products off the shelves.

In a memo supporting the deal in February, Hartig said a group of direct purchasers of either pink-eye treatment product would be eligible to benefit from the settlement, which came on the heels of other deals the three drug companies made to settle a similar lawsuit by Apotex Inc. in 2012.  The judge has already certified the class that will benefit from the settlement, according to court documents.

Like Apotex, Hartig had claimed the companies engaged in various unlawful anti-competitive practices such as filing sham lawsuits, committing patent fraud and product-hopping to prevent pharmacies from substituting generic gatifloxacin ophthalmic formulations for the defendants' more expensive branded drugs.  In August 2015, U.S. District Judge Sue L. Robinson ruled that Hartig did not have standing to sue Allergan and the other defendants because a distribution services agreement between Allergan and drug wholesaler Amerisource included an anti-assignment clause.  Thus, the judge ruled that Hartig did not have the right to sue as a direct purchaser under federal law.

However, Hartig appealed to the Third Circuit, and a panel later said the case had been wrongly dismissed.  Hartig’s assertions that it paid more for the drugs as a result of Allergan’s actions were enough to grant it Article III standing, the panel said, and it was a separate question whether the pharmacy had antitrust standing or was barred by the so-called direct purchaser rule recognized by the U.S. Supreme Court in 1977’s Illinois Brick v. Illinois.

The case is Hartig v. Senju et al., case number 1:14-cv-00719, in the U.S. District Court for the District of Delaware.