The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: GENERIC MDL NO. 2724
PHARMACEUTICALS PRICING
ANTITRUST LITIGATION 16-MD-2724
THIS DOCUMENT RELATES TO: HON. CYNTHIA M. RUFE
18-CV-03299
MEMORANDUM OPINION
Rufe, J. August 4, 2026
This matter is one case in a multidistrict litigation (“MDL”) concerning price-
fixing by numerous generic drug manufacturers. Plaintiffs range from individuals to
pharmacies, health insurance plans and hospitals. This matter, involving Plaintiff
Humana Inc. and several defendants,1 is set to be the MDL’s initial bellwether trial.
This memorandum and its accompanying order concern solely Defendants’ motions
for summary judgment on Counts 91 and 106 of Plaintiff Humana’s Second
Amended Complaint. Count 91 alleges Defendants engaged in an unlawful conspiracy
to drive up the prices of Theophylline in violation of Count I of the Sherman Act.
Count 106 alleges Defendants participated in an overarching conspiracy with one
1 Actavis Elizabeth LLC, Actavis Holdco U.S., Inc., Actavis Pharma, Inc., and Teva
Pharmaceuticals USA, Inc., Breckenridge Pharmaceutical, Inc., Mylan, Heritage,
Lannett, Mayne Pharma Inc., Impax Laboratories, LLC.
another to drive up the prices of several generic drugs.2 Several Defendants jointly
moved for summary judgment against these claims, alleging they were brought outside
of the applicable of limitations.3
Sherman Act claims must be filed within four years of their accrual.4 Humana’s
complaint was filed in the Eastern District of Pennsylvania on August 3, 2018. It filed
an amended complaint on December 21, 2018, and then a second amended complaint
(“SAC”) on April 10, 20195 that is at issue here. The SAC asserts inter alia, that several
generic drug manufacturers conspired to set prices and allocate markets for several
generic drugs in violation of federal law and the laws of several states. The parties do
not dispute that claims raised in the first and second amended complaints relate back
to the first complaint’s August 3, 2018, filing. Humana asserts that federal claims for
acts committed prior to August 3, 2014, were tolled both because the 2016 filing of
similar claims by several states against many of the defendants named by Humana in
this matter suspended the running of federal and several states’ statutes of limitations
2 Although more than thirty or forty drugs were named in Humana’s Second
Amended Complaint (“SAC”), Humana has since informed Defendants and the
Court that it will pursue claims only for Baclofen, Benazepril, Clobetasol,
Clomipramine, Diogixin, Divalaproex, Doxycycline (delayed release), Fluocinonide,
Levothyorxine, Lidocaine (excluding Lidocaine-Prilocaine formulations), Pravastatin,
Propranolol, and Theophylline. It has also informed Defendants and the Court that it
will not pursue Clayton Act claims for injunctive and declaratory relief.
3 Defendants’ Joint Motion for Partial Summary Judgment on Statute of Limitations
and Laches Grounds. 18-cv-3299, Doc. No. 452. (Unless otherwise stated, all
references to document numbers are to the docket of 18-cv-3299.)
4 15 U.S.C. §15b.
5 Doc. No. 110.
for claims in this matter, and because during years prior to 2014 Defendants
successfully concealed a conspiracy among them to control the distribution and
pricing of generic drugs from Humana despite its efforts to discover the cause of
price increases for generic drugs it purchased. Defendants argue no tolling applies and
thus they are entitled to summary judgment on the claims.
I. LEGAL STANDARD
Summary judgment is appropriate for a claim, or part of a claim, where there is
“no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” 6 A fact is “material” if resolving the dispute over the fact “might
affect the outcome of the suit under the governing [substantive] law.”7 A dispute is
“genuine” if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.”8
In evaluating a summary judgment motion, a court “must view the facts in the
light most favorable to the non-moving party and must make all reasonable inferences
in that party's favor.”9 However, not all facts must be viewed in favor of the
nonmoving party, but only those inferences and assumptions that are reasonable.10
Further, a court may not weigh the evidence or make credibility determinations.11
6 Fed. R. Civ. P. 56(a).
7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
8 Id.
9 Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
10 Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995).
11 Boyle v. Cty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998).
Nevertheless, the party opposing summary judgment must support each essential
element of the opposition with concrete evidence in the record.12 “If the evidence is
merely colorable, or is not significantly probative, summary judgment may be
granted.”13 This requirement upholds the “underlying purpose of summary judgment
[which] is to avoid a pointless trial in cases where it is unnecessary and would only
cause delay and expense.”14 Therefore, if, after making all reasonable inferences in
favor of the non-moving party, the court determines that there is no genuine dispute
as to any material fact, summary judgment is appropriate.15
II. ACCRUAL OF CLAIMS
Federal antitrust lawsuits must be brought within four years after the cause of
action accrued.16 An antitrust cause of action “accrues and the statute [of limitations]
begins to run when a defendant commits an act that injures a plaintiff’s business.”17
This “injury-occurrence” rule, which all parties agree applies to federal antitrust
actions,18 holds that when a plaintiff feels the adverse impact, a cause of action
12 Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This does “not mean that the
nonmoving party must produce evidence in a form that would be admissible at trial in
order to avoid summary judgment. Rule 56 does not require the nonmoving party to
depose her own witnesses.” Id. at 324.
13 Anderson, 477 U.S. at 249-50 (internal citations omitted).
14 Walden v. Saint Gobain Corp., 323 F. Supp. 2d 637, 641 (E.D. Pa. 2004) (citing
Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976)).
15 Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 83 (3d Cir. 1987).
16 16 U.S.C. §15(b).
17 Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971); W. Penn
Allegheny Health Sys. v. UPMC, 627 F. 3d 85, 105-106 (2010) (quoting Zenith).
18 Doc. No. 476, p. 13; Doc. No. 579, p.18.
immediately accrues to him, and the statute of limitations begins to run.19 The
commission of a new act, though, does not permit a plaintiff to recover for injuries
caused by prior overt acts outside of the limitations period.20 All parties agree that
Humana may sue for injuries it can prove it suffered as a result of purchases after
August 3, 2014. The statute of limitations for antitrust violations may be tolled by
operation of statute or equitable tolling. Defendants claim that Humana was on notice
that it had antitrust claims against Defendants on August 15, 2013, when its
employees began investigating why prices it paid for drugs were rising, and therefore,
if it wanted to recover for injuries it incurred as a result of Defendants’ concealment
of their illegal acts, it should have filed suit by August 15, 2017.21
Whether Humana was on “inquiry notice” of its claims before August 15, 2014,
turns on an examination of when Humana should have known of the basis for its
Theophylline and overarching conspiracy claims. The Third Circuit’s two-part analysis
for answering this question examines whether and when Humana had sufficient
information of Defendants’ wrongdoing.22 First, Defendants must show the existence
of “storm warnings,” that is, information available in specialized trade journals,
industry reports and other information related to industry pricing, as well as in more
general circulation news outlets, that would alert a responsible person to the
19 Zenith Radio, 401 U.S. at 339.
20 Klehr v. A.O. Smith Corp., 521 U.S. 179, 189 (1984).
21 Doc. No 476,pp. 1, 27.
22 Cetel v. Kirwan Fin. Group, Inc., 460 F.3d 494, 506-08 (3d Cir. 2006).
probability (not possibility) that misleading statements or significant omissions were
made. At this point, Humana is responsible for exercising diligence by demonstrating
it heeded the storm warnings, but despite reasonable diligence, it could not find and
avoid the storm.23
Humana seeks to prove that Defendants violated federal antitrust law as early
as 2011.24 Absent tolling allowed by statute or equitable tolling doctrines, Humana
cannot sue under the Sherman Act for any claims prior to August 3, 2014, four years
before the filing of its complaint. Humana claims that it is entitled to tolling by
statute and two grounds of equitable tolling — “American Pipe” and fraudulent
concealment. Defendants claim that Humana was on notice that it could file antitrust
claims against Defendants on August 15, 2013, when its employees began
investigating why prices it paid for drugs were rising.
As of the publication of this memorandum, the parties have informed the
Court that the only federal claims Plaintiffs plan to prove at trial that Defendants now
seek to dismiss are Sherman Act claims in Count 91 alleging a conspiracy to
23 Id. at 507.
24 For example, Humana alleges that from 2011, Defendant Taro conspired, and at
least up to the time of the filing of the complaint continued to conspire with other
manufacturers (Par and Perrigo) to increase the price of Nystatin cream. SAC, ¶¶ 592-
602. Humana’s expert, W. David Bradford, Ph.D., found that Defendants began
communicating about increasing drug prices for Desonide, Lidocaine, and Nystatin as
early as 2011. Doc. No. 476, Ex. 12, ¶40. The SAC alleges Defendants conspired to
control and manipulate the market for generic drugs as early as 2006. Doc No. ¶264.
manipulate the prices of and market for Theophylline since 201425 and Count 106
alleging an overarching conspiracy to drive up all of the drugs that are still subject of
this case because the statute of limitations for the claims expired. Humana has also
informed the Court that it will dismiss its Clayton Act §16 declaratory relief and
injunctive relief counts.26
III. TIMELINESS OF PLAINTIFF’S CLAIMS
Humana asserts three theories for allowing it to pursue claims for Sherman
Act violations alleged in Counts 91 and 106 that accrued prior to August 3, 2014, four
years before it filed its complaint. First, claims raised in the lawsuits several states filed
in this MDL beginning in 2016 are preserved as to Humana, they assert, by operation
of 15 U.S.C. §16(i). Second, those raised in the class action lawsuits filed by End-Payer
Plaintiffs (“EPPs”) and Direct Payment Plaintiffs (“DPPs) preserved the overarching
conspiracy and Theophylline conspiracy claims due to the tolling doctrine of American
Pipe v. Utah27 because Humana was a member of both classes. Third, Humana claims
that Defendants, by misdirection and falsehood, concealed their conspiracy to jointly
manipulate the market for generic drugs such that Humana, despite exercising
reasonable diligence to discover the reasons for the price increases, could not do so
before the EPPs and DPPs filed their first single conspiracy lawsuits in 2016. Despite
25 The SAC claims price manipulation in Theophylline began as early as February
2014. Doc. No. 110, ¶¶ 669-670.
26 Doc No. 579, p. 2 n.7.
27 414 U.S. 538 (1974).
diligent efforts to uncover the reasons behind those price increases, Humana states it
did not have enough notice of an overarching conspiracy involving price increases of
several generic drugs among their manufacturers and the Theophylline price and
market manipulations prior to August 3, 2014 to focus on possible antitrust violations
before the filing of other lawsuits in 2016. Humana seeks to have the jury determine
whether, and what injuries it suffered before August 3, 2014, on account of the
injuries claimed in Counts 91 and 106 that were fraudulently concealed and not
discovered despite a reasonable inquiry.
A. Government Proceeding Tolling under the Clayton Act
Humana posits that pursuant to 15 U.S.C. §16(i), several states’ filings of
complaints against several pharmaceutical companies on December 15, 2016, and
October 31, 201728 alleging a broad-based scheme to fix prices and allocate markets
for generic drugs tolled the statute of limitations for Humana’s federal antitrust
claims.29 It is not necessary to describe those lawsuits in detail for the purposes of the
government tolling doctrine because §16(i) does not apply to those lawsuits.30
28 State of Connecticut, et al. v. Aurobindo, 3:16-cv-2056 (D. Conn.), filed on
December 15, 2016, and amended on March 1, 2017, and In re: Generic Pharm.
Pricing Antitrust Litig., 2:17-cv-3768 (E.D. Pa.), filed October 31, 2017 and amended
on June 15, 2018. The first complaint was filed by twenty states, and the last amended
complaint was on behalf of 49 states and territories. Not all the drugs at issue in this
case are subject of the state complaints that pre-date Humana’s.
29 Doc. No. 579, pp. 4-5.
30 No party attached copies or portions thereof of the states’ complaints and amended
complaints to their pleadings. Though they and this matter have been part of the same
MDL, it is unrealistic for the parties to expect the Court to hunt for them, especially
§16(i) of the Clayton Act provides in pertinent part:
Whenever any civil or criminal proceeding is instituted by the United
States to prevent, restrain, or punish violations of any of the antitrust laws, but
not including an action under section 15a of this title, the running of the statute
of limitations in respect of every private or State right of action arising under
said laws and based in whole or in part on any matter complained of in said
proceeding shall be suspended during the pendency thereof and for one year. . .
.31
As Humana states, the Supreme Court held that §16(i)’s tolling provision must be
given broad application.32 Neither the Supreme Court nor any other court has held
that §16(i) applied to any government’s lawsuits or criminal prosecutions initiated by
any party other than the United States. §16(i) does not toll any statute of limitations
on account of the states’ 2016 complaint in the District of Connecticut. As the federal
government was not a party to that lawsuit, §16(i) does not toll either of the federal
claims Defendants seek to dismiss.33
when both sides have already submitted hundreds of pages of documents, some
barely legible, in support of their respective positions. The descriptions of the
complaints are not a matter of great dispute— the parties’ dispute lies in whether and
how they affect Humana’s ability to litigate injuries that accrued prior to August 3,
2014.
31 16 U.S.C. §16(i) (emphasis added).
32 Leh v. General Petroleum Corp., 382 U.S. 54, 59 (1965).
33 This Court notes that the Department of Justice, in the Eastern District of
Pennsylvania, indicted Jeffrey Glazer on December 12, 2016, and he was sentenced
on April 2, 2024 (U.S. v. Jeffrey A. Glazer, 2:16-cr-0506, Doc. Nos. 1, 76). Similarly,
the Department of Justice indicted Jason T. Malek in the Eastern District on February
13, 2016, and he was sentenced on March 28, 2026. (U.S. v. Jason T. Malek, Doc.
Nos. 1 and 62. There are dozens of mentions of both men in Humana’s exhibits
accompanying its responses to the several motions for summary judgment. See Doc.
Nos. 730, 731 and 732. No party to the motions adjudicated in the order
accompanying this motion have discussed whether, and how, the Malek and Glazer
B. American Pipe Tolling
Humana claims its federal overarching conspiracy claim and claim regarding
Theophylline are covered by the equitable tolling rule of American Pipe v. Utah, which
holds “the commencement of a class action suspends the applicable statute of
limitations as to all asserted members of the class. . . .” 34 In that case, the Supreme
Court found that the pendency of a motion for class certification in a timely-filed
complaint tolled the statute of limitations for the putative members of the class so
prosecutions tolled the statutes of limitations for federal and state antitrust claims.
However, Humana included Glazer’s and Malek’s guilty pleas designated in its
omnibus exhibits filings as PX 137 and PX 138 respectively, as an exhibit in other
summary judgment responses. In MDL Doc. No. 4486 (Humana’s Omnibus
Memorandum of Law in Opposition to Defendant’s Individual Motions for Summary
Judgement) p. 179, the indictments are cited to support Humana’s claim that, “The
relevant Defendants for the Doxy RR conspiracy are: Actavis, Endo, Par, Sun, Teva,
and West-Ward. Heritage executives, Jeffrey Glazer and Jason Malek, entered criminal
plea agreements for ‘conspiracy to suppress and eliminate competition by allocating
customers, rigging bids, and fixing and maintaining prices for doxycycline hyclate sold
in the United States, from in or about April 2013 and continuing until at least
December 2015.’”. See also MDL Doc. No. 4475 (Plaintiff Humana Inc.’s
Memorandum of Law in Opposition to Defendants’ Joint Motion for Summary
Judgment as to Humana’s Overarching Conspiracy Claim, Causation, and Injunctive
Relief Claims) at Appendix B, Rows 1 and 2.
If asked, this Court would have to rule that 15 U.S.C. §16(i) tolls the statute of
limitations for Counts 91 and 106 from December 12, 2012, four years before
Glazer’s indictment. See Minnesota Mining & Mfg. Co. v. New Jersey Wood Finishing Co.,
381 U.S. 311, 314 (1965) (under Section 5(b) of the Clayton Act, now 15 U.S.C. §16(i)
“a ‘civil or criminal proceeding . . . instituted by the United States to prevent, restrain,
or punish violations of any of the antitrust laws’ suspends the running of the statute
of limitations during the pendency thereof and for one year thereafter with respect to
private actions arising under those laws and based on any matter complained of in the
government suit”). That section “‘applies to every private right of action based in
whole or in part on "any matter” complained of in the government suit. Id. at 317.
34 414 U.S. 538, 554 (1974).
they could refile individual cases once the class was dismissed.35 “Thus, the
commencement of the action satisfied the purpose of the limitation provision as to all
those who might subsequently participate in the suit as well as for the named
plaintiffs.” The Third Circuit, relying on American Pipe, has since held that neither class
certification nor dismissal of the class claims need occur before class members, like
the Plaintiffs herein, can file individual lawsuits and take advantage of American Pipe’s
tolling provisions.36 The American Pipe rule is grounded in the equitable power of the
courts.37
Humana’s response to Defendants’ joint partial motion for summary judgment
claims the overarching conspiracy and the Theophylline counts benefit from American
Pipe tolling. In a single paragraph in the response, Humana states only that the
majority of the drugs that are subject of the SAC were filed by DPPs by August 15,
2017, four years after the inquiry notice date of August 15, 2013, the Defendants
argue is the date from which the Sherman Act statute of limitations runs.38 It then lists
eighteen drugs that the DPPs filed as single-drug class actions. While one of the
Appendices to its response lists Theophylline and overarching claims as protected by
35 Id. at 550-551.
36 Aly v. Valeant Pharms, Int’l Inc., 1 F.4th 168, 177 (3d Cir. 2021).
37 Cal. Pub. Employees’ Ret. Sys. v. ANZ Sec., Inc., 582 U.S. 497, 509 (2017)
38 Doc. No. 579, p. 16. Defendants assert the Plaintiffs were on notice of their
overarching conspiracy claim from August 15, 2013 because of an internal Humana
email, discussing price rises, speculates about the possibility price rises were due to
market allocations by Defendants. See Doc. No. 649, p.4. This notion is discussed
below.
American Pipe, the continuing violation doctrine, and government proceeding tolling,
it, too, does not explain why American Pipe applies, foregoing precise citation to the
complaint(s) it claims contain class claims of an overarching conspiracy.39 Humana’s
post-argument submission mentions American Pipe only to note that it rests on the
aforementioned argument in its response. This Court’s examination of the parties
briefs and their appendices leads to the conclusion that the Theophylline claim is
covered by American Pipe tolling as a result of DPPs and EPPs first raising those
claims in a June 7, 2018 complaint, but that only affords Humana a few weeks prior to
the SAC’s filing, making the American Pipe deadline June 7, 2014.40
C. Fraudulent Concealment
Humana’s SAC claims that Defendants engaged in an overarching conspiracy
to fix prices and allocate markets for generic drugs as far back as 2006,41 as well as a
conspiracy in early 2014 to do the same for Theophylline.42 It attributes its failure to
file its lawsuit to Defendants’ concealment of their conspiratorial actions, such as
failing to maintain a document retention policy, instructing one another to
communicate in writing and meeting in secret to conceal the conspiracies.43 The SAC
39 Doc. No. 579, pp. 36, 56.
40 See Doc. No. 579, Appendix 10, p.2; Doc. No. 476, p.9, n.8. EPPs, who included
Humana as an unnamed class member, filed the first class action concerning
Theophylline and an overarching conspiracy on June 7, 2018.
41 Doc. No. 110, ¶¶ 261-288.
42 Doc. No. 110, ¶¶ 665-685.
43 Doc. No. 110, ¶¶ 755-759
further alleges that Humana acted with due diligence to discover the source of the
rising prices.44 “The equitable doctrine of fraudulent concealment is read into every
federal statute of limitation.”45 Humana therefore claims it is entitled to invoke the
equitable tolling doctrine of fraudulent concealment to assert claims that arose prior
to August 3, 2014.
When a defendant opposes the invocation of equitable tolling,
A court must determine (1) whether there is sufficient evidence to support a
finding that defendants engaged in affirmative acts of concealment designed to
mislead the plaintiffs regarding facts supporting their . . . claim, (2) whether
there is sufficient evidence to support a finding that plaintiffs exercised
reasonable diligence, and (3) whether there is sufficient evidence to support a
finding that plaintiffs were not aware, nor should they have been aware, of the
facts supporting their claim until a time within the limitations period measured
backwards from when the plaintiffs filed their complaint.46
The Third Circuit requires that a plaintiff pleading fraudulent concealment “must fully
plead the facts and circumstances surrounding his belated discovery and the delay
which has occurred and must be shown to be consistent with requisite diligence.”47
Humana’s response to the motion to dismiss discussed at length, and supplied ample
evidence, proving for the purpose of a summary judgment motion what Humana did
44 Id., ¶759.
45 Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946).
46 Forbes v. Eagleson, 228 F.3d 471, 486-87 (3d Cir. 2000). See also In re Lower Lake Erie
Iron Ore Antitrust Litig., 998 F.2d 1144, 1178-79 (3d Cir. 1993).
47 In re Lower Lake Erie, 998 F.2d at 1179, quoting Dayco v. Goodyear Tire and Rubber Co.,
523 F.2d 389, 394 (6th Cir. 1975).
to discover and learn about the prices it paid for generic drugs starting five years prior
to Humana’s filing of its complaint. Defendants, however, maintain their evidence
shows Humana had enough notice of antitrust harm in 2013 that the statute of
limitations began to run.
Defendants assert that prior to August 3, 2014, Humana had reason to suspect
the existence of a conspiracy to raise generic pharmaceutical prices. Defendants cite
events they say demonstrably placed Humana on notice they had antitrust claims
against them:
• The New York Times, on August 9, 2012, reported on the doubling and
tripling of prices of some dermatologic drugs. The article, however, also
quotes an investment banker with a minority shareholding in one of the
companies that increased its prices— Taro— saying, “It’s much more
time-consuming and expensive to get these drugs approved [by the Food
and Drug Administration].” James Kedrowski, Taro’s chief executive,
told the newspaper the company did its best to offer fair prices to
customers. But, he said, pricing structure for many of its products had
gotten so low that other drug makers ‘were dropping out because they
couldn’t make money at it.” Nevertheless, Kedrowski claimed prices
were dropping again as other manufacturers, seeing the price increases,
were seizing opportunity and returning to the market. As proof, he said
that while Taro had been the sole producer of Nystatin, four
competitors had entered the market. Perrigo’s chairman, Joseph C. Papa
cited a “favorable pricing environment” that accounted for large
increases in revenues from net sales. The article also described Sun
Pharmaceuticals, a two-thirds owner of Taro, as pessimistic about the
sustainability of the higher prices, as evidenced by Taro’s desire to sell
Sun for a price lower than minority investors thought fair.48
48 Doc. No. 476, Ex 1.
• On August 15, 2013, Greg Riehl, the CFO of Humana’s mail-order
pharmacy subsidiary, informed Mark McCullough, the CFO of
Humana’s Pharmacy Benefits Manager, of an unexpected drop in
monthly profits. Mr. McCullough then conferred with Tony Braun,
another Humana manager, who responded that this may be the result of
collusion among generic drug manufacturers on some drugs.49
• At a deposition, Mark McCullough testified that as of 2013 he believed
the increases in generic drug prices were due to collusion.50
• Pursuant to a request from Mr. Riehl seeking information about the
price increases, Keith Dostal, Vice-President of Supply Chain Strategies,
sent an email on August 15, 2013, opined that generic pharmaceutical
manufacturers utilize “fair share methods to minimize competition, price
erosion, and maintain profitability.” The email however also notes,
“Generic manufacturers are feeling significant revenue pressure in 201f3
due to (1) limited number of new generic product launches, (2) YOY
customer competitive bid price erosion, and (3) API & manufacturing
cost increases.”51
• A September 3, 2013, slide presentation sent to Humana’s officers
identified “fair share” methods by generic pharmaceutical manufacturers
as a possible source of price increases troubling Humana.52
• Tony Braun, on August 23, 2013, sent an email to other Humana
executives suggesting that reporting the price rises to the Federal Trade
Commission was an option.53
• Despite the filing of several lawsuits against Defendants in 2016 and
2018, it was not until EPPs and DPPs filed their first complaints alleging
Defendants engaged in an overarching conspiracy.54
49 Doc. No. 476, Ex. 2 at HUM-GEN-MDL-002799547.
50 Doc. No 452, Ex. 3, pp. 230-33.
51 Doc. No. 476, Ex. 5, p. HUM-GEN-MDL-002711473-74.
52 Doc. No. 476, Ex. 6; Ex. 7 at second slide.
53 Doc. No. 476, Ex. 8.
54 Doc. No. 476, pp. 8-9.
In sum, Defendants claim that Humana was on notice on April 15, 2013, when some
it employees used the phrase “fair share” to discuss pharmaceutical companies’
pricing practices. Humana and other plaintiffs in this MDL have alleged that the
Defendants engaged in an overarching conspiracy, stating Defendants “pursued a
common goal — to achieve artificially-inflated generic drug prices through the
allocation of markets and through price-fixing agreements and that they did so
through a wide-ranging ‘fair share’ arrangement.”55 The Defendants suggest that
knowledge of this term evidences a sophistication Humana’s employees possessed
that should have tipped them off on August 15, 2013, when the term was first used,
that something was amiss, and alert them to other suspicious behavior by
Defendants.56
To satisfy the first prong of the fraudulent concealment doctrine, requiring a
showing that Defendants concealed their overarching conspiracy to control the
allocation and prices in the generic drug market, as well as their conspiracy regarding
Theophylline, Humana cites proof that Defendants plotted to frustrate inquiries that
would allow Humana and others to get to the bottom of the price increases. Proof of
the cover-up includes:
• In an October 25, 2019, interview with the United States Department of
Justice, Kevin Green, a Zydus employee starting in November 2013,
explained that one of his duties was to exchange price information with
55 In re Generic Pharms Pricing Antitrust Litig., 394 F.Supp. 3d 509, 515 (E.D.Pa. 2019).
56 Doc. No. 476, pp. 7-8.
Zydus’ competitors. His immediate supervisor, Kristy Ronco, a vice-
president of sales, set the agenda and sales objectives. She in turn
reported to Zydus’ CEO, Joe Renner, and COO, Michael Keenley.
Green told the DOJ that he and Ronco regularly shared price
information with competitors. She told Green never to put information
about price sharing in writing, and to never divulge his sources to Green
and Keenly. (Green was under the impression Renner and Keenley
knew what he was doing but did not want him to tell them.)57
• Kevin Green, starting in 2006, worked as Director of National Accounts
for Teva Pharmaceutical Industries Ltd., reporting to the company’s
Vice-President of Sales, Dave Rekenthaler. Rekenthaler avoided naming
companies when speaking with Green about communications with
competitors, using the names of states in place of the companies’
names.58
• Tony Polman, a sales employee for Perrigo, reported to John
Wesolowski, Perrigo’s Vice-President of Sales at the time, from
approximately 2011 through 2016. During that time, even after Polman
knew the Department of Justice had launched an investigation,
Wesolowski tasked Polman with obtaining market information from
competitors, but to never use email or text messages. Wesolowski
repeated this instruction to Polman and five other employees involved
with or connected to sales at weekly, Friday meetings over the course of
five or six years. Polman said he did not need Wesolowski to tell him
why he could not use email or text messaging: Polman knew such
communications with competitors was illegal.59
• Nisha Patel, a sales employee with Teva, said that on its behalf she
engaged in conversations regarding pricing, market share, and allocation
of customers between manufacturers with representatives of competitors
including, Sandoz, Lupin, Mylan, Zydus, Amneal and others. She told
the DOJ, “Keeping the conversations quiet or confidential was implied
57 PX 87 at 7-9. (PX refers to exhibits accompanying Humana’s response.)
58 PX 86 at 2, 6
59 PX 90 at 5-6.
from the beginning. No one was sending this information by email; the
text messages simply said call me when you can.”60
• Della Lubke, a Sandoz employee, testified that at times she was
instructed to tell customers that Sandoz had a supply issue with a
requested drug that Sandoz could sell at a lower price than a competitor
to avoid punishing the competitor for having a higher price.61
Humana also alleges that Defendants lied to several purchasers to justify price
increases. It cites misrepresentations Defendants made about several drugs. These
include the following:
• A customer, Amerisource Bergen on November 25, 2013, asked a
Lannett employee what justification it would give customers for an
increase in the price of Acetazolamide. The Lannett employee’s
response: “Hmmm…haven’t concocted a story yet.”62 That employee
then emailed the question to another Lannett employee that she was
instructed to respond to Amerisource Bergen that the price increase was
due to “increased production costs,” the Lannett employee responded,
“Oy.”63
• In March 2014, Teva told customers it was increasing Baclofen prices
due to “industry-wide changes.”64 One month later, in another email,
Patel admitted that Teva had to “take the increase [for Baclofen] across
the board, for optics.”65
• On December 3, 2013, Econdisc, a customer for Lannett’s Digoxin,
asked why the price for that drug and others had increased, and Lannett
replied the blame lay with increased costs due to new government
regulations and material shortages.66 Lannett gave a similar reply two
60 PX 76, at 1-2,7.
61 PX 5, at 108-110.
62 PX 1609.
63 PX 1610.
64 PX 1621.
65 PX 387.
66 PX 1615.
months earlier to the same question posed by the Minnesota Multistate
Contracting Alliance for Pharmacy.67
• In February, 2014, Heritage’s Anne Sather informed co-worker Jason
Malek that Cardinal Health asked Heritage to bid on Doxy DR. Malek
told her that Heritage did not want to upset Mylan’s pricing.68
• On May 31, 2013, West-Ward internal emails expressed concern about
news stories reporting a shortage of Doxycycline Hyclate Regular
Release (RR). While some employees on the chain thought West-Ward
should explain the shortage, another ended the conversation by stating
West-Ward should not risk public scrutiny by responding to the stories.69
• On May 16 and 17, internal Teva emails concerning a bid from Schnucks
Markets indicated agreement not to respond to Schnucks’ request for a
bid on various doses of Pravastatin. Teva’s Kevin Green’s stated reason
was, “There’s a lot of market activity right now, and we need to stay put
on our current market share.”70
• On April 7, 2014, Rich Smith at Heritage affirmed that Heritage had the
supply to meet a request for proposal from Meijer for Theophylline
ER.71 Nevertheless, on April 16, 2014, Heritage’s Matt Edelson told
Meijer supply issues prevented Heritage from bidding on the RFP.72
• A consultant to a U.S. Senate Special Committee on Pharmaceutical
Pricing sent an email on April 24, 2014, to a Croatian distributor of
Theophylline ER, about a 200% increase in the drug’s price, who
forwarded it to Rachel Yehezkel of Teva, asking her to respond to the
consultant’s inquiry. The email was forwarded to other Teva employees,
one of whom said, “I don’t have a great story.”73 Emails between Teva
employees over the next two days showed how the Theophylline ER
market was divvied up between Teva and other companies, and a
67 PX 1613.
68 PX 1611.
69 PX 732.
70 PX 1622.
71 PX 975.
72 PX 976.
73 PX 986.
contrived excuse was to be given to the inquiry from the Senate Special
Committee consultant.74
• In 2014, Jeffrey Malek of Heritage was instructed to tell a pharmaceutical
distributor employer, Patrisha Cowley, false excuses— what Malek
described as “a typical reason that Heritage used to explain price
increases.”75 (The excuses are not described.) These were communicated
by Sather to Crowley on June 26, 2014.76
• At an April 16, 2025, deposition, Jeffrey Glazer described conversations
between Heritage and Mylan that ended in agreement for Mylan not to
compete with Heritage for sales to CVS of Doxycycline Hyclate Delayed
Release.77
• In late April 2014 Lannett increased its Ursodiol price 1500%, telling
customers the price increase of an ingredient was to blame.78 At the
same time, internal emails showed Lannett had a five-month supply of
inventory of the drug and the active ingredient in question.79
Next, to satisfy the third prong showing how aware they were, and how aware
they should have been, of Defendants’ conspiratorial activities, Humana cites
examples of its diligent efforts to discover why prices were rising.
• As of August 13, 2013, Keith Dostal, a Humana pharmacist and a vice-
president for supply chain strategies, did not know what “fair share “
meant in the context of price increases for drugs.80
• In November, 2013, internal emails between Humana employees
demonstrated investigation of the drug price increases. At that time, an
industry publication attributed the increases to shortages of the drugs.81
74 PX 1186.
75 PX 110, pp. 1, 5;
76 PX 983 at HER-AS-000067003, HER-AS-000067003.
77 PX 28, pp. 42-48.
78 PX 1612.
79 PX 991; PX 992.
80 PX 1754; PX 1734.
81 PX 1733.
The publication, Drug Channels- Expert Insights on Pharmaceutical Economics
and the Drug Distribution System, wrote:
Retail generic drugs usually get cheaper over time. But our exclusive
analysis (below) shows that about one-third of generic drugs have gotten more
expensive in the past twelve months. Even more surprising, a small number
have skyrocketed. Twelve drugs' costs have increased by more than 2,000%.
Drug shortages appear to be the primary culprit. Contrary to what
some people believe, exploding generic costs are the one thing that can't be
blamed on Obamacare.
Pharmaceutical wholesalers have been the big winners. Some
pharmacies have also benefited, but many are being squeezed by third-party
payer reimbursements. My big questions: will continued price increases slow
the pharmacy industry's race-to-the-bottom generic price war or make preferred
network participation less appealing to pharmacies? Keep an eye on this trend.
• On July 17, 2014, Dan Brais, Humana’s Channel Strategy Leader,
responded to internal questions about the price increases by indicating
his research showed that ingredient shortages and quality issues limited
supplies of drugs, causing all vendors of the drugs to increase prices.82
• William Flemming, a former President of Humana’s pharmacy
operations, testified in October 2025 that he heard of many definitions
for the term “fair share.” He also testified that Humana unsuccessfully
tried to negotiate lower prices in return for large pharmaceutical orders.83
Defendants’ examples of Humana’s not responding to what they claim were obvious
signs of price manipulation instead demonstrate additional attempts by Humana to
learn the cause of the price increases. Defendants omitted pertinent excerpts from
exhibits they say demonstrate Humana’s lack of diligence in tracing the reasons for
82 PX 1731.
83 PX 1753.
the price increases.84 Those omissions further buttress Humana’s claim it acted with
diligence. As noted above, the 2012 New York Times article Defendants cite quotes
drug manufacturer spokesmen citing sundry market and material supply issues for
price increases.85 The August 15, 2013, email86 that mentions “fair share pricing,”
when placed in context, demonstrates Humana’s Mr. Dostal, given the information he
possessed, offered several other reasons prices may have risen, and suggested several
courses of action. This excerpt from that email shows an effort to investigate why
prices were rising and devise ways to deal with them:
• Generic pharmaceutical industry pricing is primarily based upon supply-demand mechanics.
However, generic pharmaceutical manufacturers utilize "fair share" market share methods to
minimize competition, price erosion and maintain profitability. Generic manufacturers
contractually require the ability to raise pricing or remove products from contract.
• Generic manufacturers are feeling significant revenue pressure in 2013 due to (1) limited
number of new generic product launches, (2) YOY customer competitive bid price erosion and
(3) API & manufacturing cost increases.
• Therefore, generic manufacturers are attempting to push through price increases where there
is limited competition, quality/ supply issues by other manufacturers or raw material price
inflation.
• Current industry generic manufacturer contracts do not contain any price protection language
in their agreements other than typically required 60-90 day notification process before price
can change; price lock or inflation agreements typically come at a higher unit cost[.]
84 See supra. at pp. 14-15.
85 Doc. No. 476, Ex. 1.
86 Doc. No. 476, Ex. 5, p. HUM-GEN-MDL-002711473-74
• Issue competitive pricing requests to other generic manufacturer ANDA holders actively
manufacturing & selling the products.
• Benchmarking pricing against wholesaler distribution price points to understand extent of
price increase reach within industry.
• Manufacturer discussions ongoing with impacted products, bundled product opportunities
and may look to other products within generic portfolio for additional price relief[.]
• If unable to mitigate cost of goods impacts, request MAC pricing increase[.]
• Challenge our Humana contract template to limit or protect Humana from generic price
increases and validate what language is industry leading thru industry consultant review
process[.]87
Defendants’ citation to the September 3, 2013, slide presentation also fails to note it
mentions several possible reasons prices were rising, including eroding customer
bidding competition, API (active pharmaceutical ingredient) and manufacturing price
increases, and industry consolidation while smaller manufacturers exited product lines
to focus on core products. The presentation lists no less than ten mitigation
proposals.88
Defendants ask that this Court not consider investigative reports Humana cites
from the United States Postal Inspection Service and the Federal Bureau of
Investigation89 to support Humana’s claim that those witnesses will support claims of
collusion between Defendants in price fixing and market allocation.90 While the
87 Doc. No. 476, Ex. 5, p. HUM-GEN-MDL-002711473
88 Doc. No. 476, Ex. 7, slides 2 and 5.
89 See e.g., PX 76, PX 86, PX 87, and PX 90, supra.
90 Doc. No. 649, pp. 10-11.
reports themselves are likely inadmissible at trial, in this Circuit, they can be
considered at summary judgment. “The rule in this circuit is that hearsay statements
can be considered on a motion for summary judgment if they are capable of being
admissible at trial. The proponent need only “explain the admissible form that is
anticipated.”91 This Court will therefore consider the investigative reports cited in this
memorandum because they contain statements admissible, depending on how they are
offered as direct evidence from the declarant or as an exception to the hearsay rule.
Humana said that it did not learn of the “full existence and scope of the price
fixing conspiracy” until the March 2, 2016, filing of the EPP class action complaint.92
Indeed, Defendants point to no instance where they encouraged anyone to do
anything but fully accept their excuses for the price increases. Defendants also do not
quarrel with the authenticity or completeness of any particular Humana exhibit. It is
common experience that prices for many products in a general category like generic
pharmaceuticals can suddenly rise in unison. As this memorandum is published, many
news stories report this is occurring in the market for all sophisticated computer
memory chips and in grocery products. This does not and should not automatically
91 Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016)
(citations omitted) (overruling district court ruling that plaintiffs’ accounts of
statements made by police officers concerning retaliation could be considered at
summary judgment). See also, J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542
(3d Cir. 1990) (in antitrust action, buyer’s affidavit that recounted complaints about
prices from salespersons could be considered at summary judgment because the
statements were reducible to admissible evidence at trial).
92 Doc No. 579, p. 20.
give rise to conspiracy theories that the vendors are engaged in anticompetitive
activities. The filing of a class action or a government administrative complaint can be
the event that first alerts a plaintiff that vendors’ sensible explanations for price rises
may be less than truthful and instead the result of illegality, triggering the need for any
victims to contemplate litigation for acts that have been occurring for years. In Isaak v.
Trumbull S&L Co.,93 concerned plaintiffs waited until the conclusion of bankruptcy
proceedings to sue an owner who looted campgrounds in which the plaintiffs had an
interest. Aside from other signs they were being defrauded, the most obvious, the
initiation of the bankruptcy proceedings five years later (and one year past the RICO
statute of limitations) was, the court ruled, the notice to the plaintiffs to the need to
file suit.94 A similar, official record of a defendant’s wrongdoing was the starting gun
in In re NAHC.95 In this securities fraud litigation, the Third Circuit ruled that
plaintiffs, shareholders in a healthcare company, were put on inquiry notice not by
regular statements they received from the defendants, but the defendants’ filing of a
government securities form (Form 8-K) that showed the defendants’ prior
representations as to the value of its business were likely false. Plumbers Loc. Union No.
690 Health Plan v. Apotex Corp.,96 found that no later than the date a union health plan
agreed to participate in a class action against other drug wholesalers regarding pricing
93 169 F.3d 390, 399 (6th Cir. 1999).
94 Id.
95 306 F.3d 1314, 1326 (3d Cir. 2002).
96 2017 U.S. Dist. LEXIS 156444, *29, n.12 (E.D. Pa. 2017).
practices, it knew the defendants also engaged in similar pricing practices, and
therefore it could not claim they exercised reasonable diligence prior to filing another
suit years later when the statute of limitations. In all three cases, the plaintiffs saw
signs that the defendants may have engaged in tortious behavior, but the alarm bell
was the initiation of some official action— a lawsuit or an admission on a government
filing—to trigger the statute of limitations clock.
A 2020 lawsuit filed by the states in this MDL in the District of Connecticut,
four years after their first generic drugs lawsuit, is another example of how another
party’s lawsuit gives notice that a claim must be pursued. In that case, the Plaintiff
states were found to have successfully alleged at summary judgment that they were
victims of fraudulent concealment by some manufacturers of generic dermatological
drugs for several years, allowing the states to make claims farther back than the statute
of limitations, or in the case of the states’ Clayton Act claims, the usual four-year
period a laches determination would usually allow. Despite having already filed two
lawsuits regarding generic drugs, the states demonstrated that, because of the
defendants’ concealment and misrepresentation of their activities, they97 did not have
inquiry notice of their claims concerning the dermatological drugs until investigative
subpoenas yielded records of an overarching conspiracy. Misleading and false
statements to customers, evidence of avoidance of committing incriminating
97 Connecticut v. Sandoz, Inc., 2025 U.S. LEXIS 214944 *67-*68 (D. Conn. 2025).
information to writing, and the use of code words all were part of the concealment, as
they are in this case.98 Denying summary judgment on statute of limitations grounds,
that Court ruled that the issue of when the states were on notice of their claim was
going to be placed before the jury.99
For the purpose of summary judgment, Humana has shown that it exercised
due diligence in pursuing the suspicious increases of drugs it observed in 2013. After
observing several price hikes, it developed strategies to confront the problem and
followed trade publications reporting on it. Companies are not required to assume the
worst of vendors who increase their prices, especially when vendors tell the public
and their customers that their costs have risen or prices will fall soon. Humana has
raised a genuine, substantive dispute of fact as to whether the Defendants schemed to
conceal agreements between them to control the price and supply of generic drugs,
and whether before August 3, 2014, that scheme prevented Humana from learning, as
opposed to speculating, that the high prices it paid resulted from those conspiracies.
The issue of when Humana was on notice it had Sherman Act claims concerning both
Theophylline and the overarching conspiracy is for a jury to decide.100
98 Id. at *67-*78.
99 Id. at *81.
100 Morton's Mkt., Inc. v. Gustafson's Dairy, Inc., 198 F.3d 823, 832 (11th Cir. 1999) (issue
of whether Sherman Act claims were tolled due to fraudulent concealment should be
placed before a jury. Accord Knopick v. Connelly, 639 F.3d 600, 611 (3d Cir 2011) (under
Pennsylvania law, when plaintiff should have known that his lawyer’s failure to call a
witness at trial was malpractice was a jury question).
IV. CONCLUSION
WHEREFORE, for all of the foregoing reasons, Defendants’ motion for
partial summary judgment as to Counts 91 and 106 of the Second Amended
Complaint is DENIED.
BY THE COURT:
/s/ Hon. Cynthia M. Rufe
____________________
CYNTHIA M. RUFE, J.