November 11, 2022
A recent Law 360 story by Nadia Dreid, “Opana Buyers’ $145M Deal With $50M in Atty Fees Gets Final OK” reports that the attorneys who secured a $145 million settlement for direct purchasers of Endo Pharmaceuticals's Opana ER who said they overpaid generic-drug maker Impax Labs for the prescription painkiller because of a pay-for-delay deal will walk away from the litigation with more than $50 million for their trouble. U.S. District Judge Harry D. Leinenweber gave the settlement his final approval, solidifying the agreement that will give class counsel Garwin Gerstein & Fisher LLP and Berger Montague PC more than a third of the settlement fund for their work over the last eight years.
The $50,528,470.66 in attorney fees amounts to 36% of the settlement fund, after the class awards and the $4.3 million in costs that the firms will also receive are subtracted, according to the opinion. Direct purchases Value Drug Co. and Meijer Inc. will each receive $150,000 for their trouble.
The deal was reached just as trial was set to start back in June in the multidistrict litigation over a 2010 deal Endo and Impax reached to settle patent infringement claims Endo laid against the generics maker. One group of direct purchasers — CVS Pharmacy Inc. and Walgreen Co. among them — opted out of the class, but ended up reaching their own settlement mid-trial, though the details were never made public.
Impax ended up getting around $112 million from Endo for delaying its generic version of Opana ER by about three years, with Endo promising not to launch an authorized generic version of the drug once Impax's version went to market, according to the current suit. According to the Federal Trade Commission and the Opana ER buyers that make up the various proposed classes, the settlement constituted an illegal reverse payment.
The claims have been working their way through Illinois federal court since late 2014 when they were folded into the court by the U.S. Judicial Panel on Multidistrict Litigation. The buyers said they lost money by paying more for the brand name when a cheaper, generic version could have been available to them.