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Re: A.F. of L.-A.G.C. Building Trades Welfare Plan v. Forest Laboratories, LLC, No. 1:20-
cv-01799 frel. 1:15-cv-06549] (S.D.N.Y.) — Request for Extension of Time to Answer □□
or Move to Dismiss and Consolidation with Jn re Namenda Indirect Purchaser □
Antitrust Litig., No. 1:15-cv-06549-CM-RWL (S.D.N.Y.)
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Dear Judge McMahon: gehp ya emp | □□
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AF of L. - A.G.C. Builditig Hise Weliars Plan CAGC”) filed a class action complaint
against Forest Laboratories, LLC (“Forest”) in New York state court, alleging substantially similar
conduct as alleged in Jn re Namenda Indirect Purchaser Antitrust Litigation, No. 1:15-cv-06549-
CM-RWL (S.D.N.Y.) (the “Consolidated Action’). Forest removed the state court action to this □
Court on February 28, 2020. A.F. of L. — A.G.C. Building Trades Welfare Plan y. Forest
Laboratories, LLC, No. 1:20-cv-01799 (S.D.N.Y.) (the “AGC Action”).
Forest respectfully requests that this Court consolidate the AGC Action with the
Consolidated Action, and grant Forest a 30-day extension to answer or move to dismiss, until April
6, 2020. AGC has consented to Forest’s request for a 30-day extension to file Forest’s answer or
motion to dismiss.
I, The AGC Action Should be Consolidated with In re Namenda Indirect Purchaser
Antitrust Litigation
The AGC Action alleges essentially the same conduct against Forest with respect to
Namenda that is alleged in the Consolidated Action—a “hard switch” from Namenda IR to
Namenda XR and an illegal reverse payment related to Namenda IR. The AGC Action also seeks
to certify a similar class of indirect patient and health plan payors. Forest therefore asks this Court
to consolidate the AGC Action with the Consolidated Action under Federal Rule of Civil
Procedure 42, as the Court did with the case filed by MSP Recovery Claims. See Revised Master
Order, Consolidated Action (Dec. 10, 2019), ECF No. 314. Forest additionally requests that this
Court place the AGC Action on the same schedule as the Consolidated Action, as Forest should
not be faced with duplicative motions for class certification, summary judgment, and trial over
similar claims, and that the same limitations as in the Consolidated Action be entered as to AGC
regarding the use of DPP expert reports and duplicative discovery from Forest in light of the
extensive discovery already taken. See Consolidated Action, ECF Nos. 314, 359.
Consolidation would not prejudice AGC. This is not the first time that AGC has filed a
complaint relating to Namenda: AGC filed a similar complaint hy this,Court in June 2015., See
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The Honorable Colleen McMahon
March 4, 2020
A.F. of L. — A.G.C. Building Trades Welfare Plan v. Actavis, plc, No. 1:15-cv-04406-CM
(S.D.N.Y.). That complaint also alleged that Forest entered into unlawful patent settlement
agreements with generic manufacturers and engaged in a “hard switch.” AGC voluntarily
dismissed that case prior to Forest responding, and prior to providing any discovery to Forest.
AGC’s reemergence with similar claims nearly 5 years later in state court should not restart the
clock for AGC.
I. Forest Requests an Extension to File Its Answer or Move to Dismiss AGC’s
Complaint, Which Includes Claims Already Rejected By This Court in the
Consolidated Action
Pursuant to Federal Rule of Civil Procedure 81(c)(2), Forest’s deadline to answer or move
to dismiss is currently Friday, March 6, 2020—-7 days after the Notice of Removal was filed.
Forest respectfully requests that this Court grant Forest a 30-day extension to file Forest’s answer
or to move to dismiss, to April 6, 2020. AGC has consented to Forest’s request for a 30-day
extension. No prior requests for an extension of Forest’s answer or motion to dismiss have been
made in this Court. However, plaintiff AGC and Forest previously agreed on a 60-day extension
for Forest’s answer in the state court action, until May 1, 2020. The state court granted that
extension. See Exhibit 1 at 57, AGC Action, ECF No. 1.
While AGC’s claims are similar to those in the Consolidated Action, they are not identical.
For example, AGC brings claims only under New York state law, including a claim under New
York’s consumer protection law, N.Y. Gen. Bus. L. § 349. But a similar claim under the New
York consumer protection law was dismissed by this Court in connection with SBF’s complaint
in the Consolidated Action. See Sergeants Benevolent Ass'n Health & Welfare Fund vy. Actavis,
ple, No. 1:15-cv-06549-CM-RWL, 2018 U.S. Dist. LEXIS 220574, at *130 (S.D.N.Y. Dec. 26,
2018). AGC also alleges sham lawsuits regarding Forest’s Namenda patent litigations with generic
manufacturers, which this Court already found to be “frivolous” in the Consolidated Action. See
Order at 7-10, Consolidated Action (Dec. 2, 2019), ECF No. 308.
Accordingly, Forest reserves the right to address these claims, and any other differences
from the Consolidated Action, in a motion to dismiss. Forest’s request for a 30-day extension to
answer or move to dismiss AGC’s complaint, if granted, would not affect any other scheduled
dates, as Forest fully intends to move forward with discovery while the motion to dismiss briefing
and decision are pending.
Respectfully submitted,
Marne,
Martin M. Toto
T +4 (212) 819-8200
E mtoto@whitecase.com
WV ras Gk □□ □□□
The Honorable Colleen McMahon
March 4, 2020
CERTIFICATE OF SERVICE
I hereby certify that on March 4, 2020, I caused true and correct copies of this Request for
Extension of Time to Answer or Move to Dismiss and Consolidation with Jn re Namenda Indirect
Purchaser Antitrust Litig., No. 15-cv-06549-CM-RWL (S.D.N.Y.) to be served by U.S. Mail,
postage prepaid, and Electronic Mail upon:
Michael M. Buchman
777 Third Avenue, 27th Floor
New York, NY 10017
mbuchman@motleyrice.com
Attorney for the Plaintiff
/s/ Daniel J. Grossbaum
Daniel J. Grossbaum