PHOENIX – Attorney General Mark Brnovich today announced a $125 million, multi-state antitrust settlement with Cephalon and its affiliated companies. The settlement ends an investigation by 49 state attorneys general into allegations that Cephalon engaged in anti-competitive acts to protect the monopoly profits it earned from Provigil, a drug prescribed for the treatment of certain sleep disorders including narcolepsy. The multi-state investigation determined that Cephalon’s anti-competitive acts delayed generic prescription drug competition for several years.
“Arizonans and others across the nation were forced to pay millions more for Provigil because the generic version of the drug was not made available,” said Attorney General Mark Brnovich. “Anti-competitive acts only hurt the consumer and should play no part in consumer prescription drug choices.”
In related litigation between a generic manufacturer and Cephalon, a court found that as patent and regulatory barriers that prevented generic competition to Provigil neared expiration, Cephalon intentionally deceived the Patent and Trademark Office to secure an additional patent. As a result of Cephalon’s deception, the court found the additional patent to be invalid and unenforceable. Before that court finding, Cephalon was able to delay generic competition for nearly six years by filing patent infringement lawsuits against potential generic competitors. Cephalon settled those lawsuits in 2005 and 2006 by paying the generic competitors to delay sales of their generic versions of Provigil until at least April 2012. Because of those “pay for delay” agreements, consumers, states and others paid hundreds of millions more for Provigil than they would have had generic versions of the drug launched in 2006 as expected.
The settlement, which is subject to court review, includes $35 million for distribution to consumers who bought Provigil. Pending class action litigation may provide additional monetary recovery for consumers. Arizona’s total recovery from the settlement will be about $2.4 million. Approximately $665,000 will be distributed to eligible consumers who submit claims and more than $1 million will be distributed to state entities that purchased Provigil.
Arizona Attorney General's Office Antitrust Unit Chief Nancy M. Bonnell worked on this case.
The claims process should begin after final approval is granted by the court and will be overseen by a settlement claims administrator. If you believe you have been a victim of consumer fraud, please contact the Attorney General’s Office in Phoenix at (602) 542-5763, in Tucson at (520) 628-6504, or outside the Phoenix and Tucson metro areas at 1 (800) 352-8431. Consumers can also file complaints online by visiting the Attorney General’s website.