DeWine secures recovery in $125 million settlement


Greene County News

COLUMBUS — Ohio Attorney General Mike DeWine, along with 48 other attorneys general, today announced a $125 million settlement with Cephalon and affiliated companies over allegations that Cephalon engaged in anticompetitive conduct that delayed the market entry of generic versions of Provigil, a prescription drug used to promote wakefulness and treat sleep disorders.

Ohio’s total recovery is expected to be about $4 million, including an estimated $1.57 million for Ohio consumers who bought Provigil between 2006 and 2012, $1.43 million for state entities that bought Provigil, and $1 million to the Ohio Attorney General’s Office.

“We worked hard to secure millions of dollars for Ohio in this case,” Attorney General DeWine said. “This is money that otherwise would not have been available for Ohio consumers or for the state. We hope the recovery will help individual Ohioans and agencies that serve them.”

The settlement ends a multistate investigation led by Ohio, New York, Vermont, Indiana, and Minnesota into anticompetitive conduct by Cephalon to protect the monopoly profits it earned from Provigil. The conduct delayed generic versions of the drug from entering the market for several years.

Generic versions of Provigil were expected to launch by early 2006, but before they did, Cephalon secured an additional patent (which a court later deemed invalid and unenforceable). Cephalon also filed patent infringement lawsuits against potential generic competitors and settled those lawsuits by paying the competitors to delay selling their generic versions of Provigil until at least April 2012. The delayed entry caused consumers, states, and others to pay more for the drug than they would have if generic versions had launched by 2006 as expected.

Most of the settlement funds will be used to reimburse consumers who bought Provigil between June 24, 2006, and March 31, 2012, and to reimburse state purchasers, such as pharmacy purchasing agencies, Medicaid, and state hospitals.

The settlement is subject to court review, which the states expect to be provided by Judge Mitchell Goldberg of the Eastern District of Pennsylvania, who is currently overseeing other litigation concerning Provigil against Cephalon and others. If the court approves the settlement, eligible consumers will be notified and will have an opportunity to participate in, object to, or opt out of the settlement.

This multistate settlement was facilitated by litigation brought against Cephalon by the Federal Trade Commission. In May 2015, the FTC settled its suit against Cephalon for injunctive relief and $1.2 billion, which was paid into an escrow account. The FTC settlement allowed for those escrow funds to be distributed for settlement of certain related cases and government investigations, such as this multistate settlement.

The multistate settlement includes the attorneys general of Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

A copy of the settlement, which will be submitted to the court for approval, is available on the Ohio Attorney General’s website.

Story courtesy of Attorney General DeWine’s office.

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