WEST VIRGINIA RECORD

CHARLESTON – State Attorney General Patrick Morrisey says the defendants in one of his predecessor’s final lawsuits are forum-shopping and the case against them should be heard in state court.

On April 3, Morrisey filed in U.S. District Court a memorandum opposing the transfer of a lawsuit against Pfizer, Inc., and others to a multidistrict litigation proceeding in New Jersey. The case was filed by former state AG Darrell McGraw in his final month on the job, and Morrisey has taken the reins of it.

The complaint, filed originally in Mason County, alleges Pfizer and Ranbaxy conspired to delay introduction of a generic version of Pfizer’s cholesterol-lowering drug Lipitor.

“Filing a Notice of Removal and then seeking to utilize Multidistrict Litigation Panel procedures to forum shop (is) an abuse of the MDL process and strips the State of its sovereign rights,” the memorandum says.

“Yet, this is precisely what the defendants have done.”

The complaint alleges Pfizer fraudulently obtained a second, duplicative patent from the U.S. Patent and Trademark Office and listed it in the U.S. Food and Drug Administration’s Orange Book, filed a sham citizen petition with the FDA to stall approval of the generic Lipitor, embarked an anticompetitive agreement with Ranbaxy and thwarted efforts to obtain judicial declarations that their patents were invalid.

Attorneys for the defendants noticed a multidistrict litigation proceeding organized in April in a New Jersey federal court over the issue. The MDL consists of at least 29 class action lawsuits.

The defendants say the case is a “tag-along” and should be incorporated into the MDL.

On March 8, Morrisey’s chief counsel Dan Greear, Charleston attorney Troy Giatras and Fred Longer of the Philadelphia firm Levin, Fishbein, Sedran & Berman filed a motion to remand the case back to Mason County.

The private attorneys had been hired by McGraw to pursue the case.

On March 22, the defendants also filed a motion to stay the lawsuit pending a transfer to the MDL. It says West Virginia’s complaint is the 30th antitrust action against Pfizer and Ranbaxy since November 2011.

“The other 29 actions have been transferred and consolidated in the MDL court over the last year,” the defendants wrote.

“The (Judicial Panel on MDL) issued a (conditional transfer order) transferring this action to the MDL court to which the plaintiffs objected, automatically staying the CTO pending the resolution of Plaintiff’s subsequent motion to vacate the CTO.

“(G)ood cause exists for the court to stay this action pending resolution of the motion to vacate, which will likely occur by June.”

Morrisey’s April 3 brief says the defendants failed to satisfy the elements required for their requested stay.

“Removal is clearly improper, identical jurisdictional issues have not been raised in other cases transferred to the MDL proceeding, granting the motion would be judicially inefficient, and the plaintiff would absolutely be prejudiced unless the motion to stay is denied,” the brief says.

“Defendants’ attempt to forum-shop should not be rewarded with a stay.”

The brief goes on to say that removal to federal court under the Class Action Fairness Act is “flat out wrong” because the lawsuit is a parens patriae enforcement action possessing quasi-sovereign interest.

In McGraw’s case against CVS, the U.S. Court of Appeals in 2011 for the Fourth Circuit ruled for McGraw in a similar removal dispute.

Morrisey added, citing the second edition of the textbook “Modern Complex Litigation,” that MDL courts have a tendency to be the “legal equivalent of a black hole from which cases do not emerge.”

“Defendants apparently want the plaintiff to sit around and wait to see if the MDL Panel will transfer and consolidate this matter,” the brief says.

“Now is not the time for Plaintiff’s case to be lost in the shuffle of competing private out-of-state class actions.”

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.