[Ip-health] Class Action Suit v. Bristol

[James Love]

-------- Original Message --------
Subject: Class Action Suit v. Bristol
Date: Fri, 16 Mar 2001 20:17:19 -0500
From: Brad Cameron <Brad@ngrc.com>

After receiving notice of the court decision against Bristol-Myers
Squibb this week, the SPAN Coalition informed attorneys at the law firm
of Cohen Millstein of the potential for a profitable class action
lawsuit against the company.  The firm announced today that it has filed
suit against Bristol on behalf of purchasers, with the intent to expand
the suit to include end users.  Following is a copy of the firm's
announcement made this evening (the original SPAN memo appears first).
--Brad


 Subject: BMY
 Date: Tue, 13 Mar 2001 17:11:13 EST
 From: LarryCo2020@aol.com
 To: lawinfo@cmht.com.

The SPAN coalition was founded by the Gray Panthers to stop abuses by
Bristol-Myers Squibb that are preventing seniors and others from
purchasing affordable medicine.  Today a federal court judge decided
against Bristol-Myers Squibb in patent litigation involving BuSpar, an
anti-anxiety drug used by one-in-ten nursing home patients and AIDS
patients with substance abuse problems.  It remains to be seen what
material affect this will have on shareholder value.

We believe, however, that as litigators currently involved in suits
against drug companies, you will find this information of some value.
The following is a summary from our Web site www.spancoalition.org.
Additional information appears in attachements.

Summary:

Bristol-Myers Squibb has apparently intentionally misled federal
agencies to maintain artificially high prices for BuSpar (Buspirone), an
anti-anxiety drug prescribed for AIDS patients with alcohol and drug
dependencies and one-in-10 nursing home patients.

On Nov. 22, the U.S. Food & Drug Administration listed a new
Bristol-Myers Squibb patent (# 6,150,365) in the FDA "Orange Book"
relating to a Buspirone metabolite. The patent was listed on the very
day its original Buspirone patent expired.  The FDA had already provided
a number of generic pharmaceutical
companies with tentative approval to begin marketing Buspirone, which
would have reduced prices for the drug up to 70 percent.

Bristol's last minute listing of the patent appears intended for the
sole purpose of triggering provisions of federal law (1984 Hatch-Waxman
Act) that prevent final FDA approval of generic Buspirone sales for 30
months. The result is to delay consumer access to more affordable
versions of the critical medication, while at the same time providing
Bristol-Myers Squibb with as much as $1.75 billion in non-competitive
sales.

SPAN members are particularly concerned about the extent to which
Bristol-Myers Squibb engaged in an apparent deliberate effort to deceive
federal agencies in order to obtain its Orange Book listing. Bristol was
required by the U.S. Patent & Trademark Office to ensure that its
request for the new patent was not intended to cover methods of use
already incorporated under existing patents. Bristol-Myers provided
documentation to the PTO in which it specifically stated that its patent
request was for purposes not previously covered.

While this statement allowed Bristol to obtain the patent, the company
was informed by the FDA on Nov. 30 that the patent may not be eligible
for listing in the Orange Book because of the fact that it did not cover
approved uses of Buspirone. This led Bristol-Myers Squibb to certify in
writing to the FDA on Dec. 4 that the patent "contains a claim for the
approved uses of Buspirone."

Not the First Time

In fact, Bristol-Myers Squibb engaged in similar apparent deceit to
extend its market exclusivity for Taxol, a drug to treat cancer and
AIDS-related illnesses. Patricia Ireland, president of the National
Organization of Women, called the company's actions on Taxol "truly
reprehensible." Federal District Court Judge William H. Walls stated in
a ruling against Bristol-Myers Squibb over the Taxol dispute "There can
be no question…that Bristol-Myers Squibb took one position before the
PTO, and another before the FDA."

We look forward to contributing further to any effort you may undertake
to repersent consumer interests in this matter.

Larry Richardson
SPAN Coalition


Friday March 16, 5:16 pm Eastern Time
Press Release

Cohen Milstein Files Class Action Suit Against Bristol
Myers-Squib--Antitrust Action Charges Illegal Exclusion of Generic
BuSpar from Market

WASHINGTON--(BUSINESS WIRE)--March 16, 2001--The law firm of Cohen,
Milstein, Hausfeld & Toll, P.L.L.C. today announced the filing of a
nationwide class action against Bristol Myers-Squib (``Bristol'') for
violation of federal antitrust laws.

The lawsuit is based on Bristol's scheme to illegally extend its
monopoly on the production of the commonly prescribed anti-anxiety drug,
buspirone hydrochloride,
marketed as BuSpar®. Cohen, Milstein, Hausfeld & Toll P.L.L.C. is a
national class action law firm with offices in Washington, D.C., and
Seattle, Washington.

The case, HIP Health Plan of Florida, Inc. v. Bristol-Myers Squib was
filed in United States District Court for the District of Columbia, on
behalf of a
class of end purchasers of BuSpar® alleging that Bristol has effectively
locked generic competitors out of the market since November 22, 2000
through the submission of false patent information to the FDA. The
result of Bristol's unlawful conduct has been to extend Bristol's
monopoly beyond the time period permitted by U.S. patent law.

The lawsuit also alleged, on behalf of a 17-jurisdiction subclass, that
the same conduct violated antitrust laws in sixteen states and the
District of Columbia.

The facts giving rise to this antitrust action are set out in Judge
Urbina's decision in Mylan Pharmaceutical, Inc. v. Thompson, No. 00-2876
(RMU) (D.D.C.
March 14, 2001). The decision details a purposeful course of conduct by
Bristol, designed to persuade the FDA to prevent the marketing of a
generic form of
buspirone hydrochloride, by asserting the exclusive right to market the
drug pursuant to an inapplicable patent. As a consequence of these acts,
HMOs, insurance
companies, and individuals -- all members of the proposed class -- have
paid a higher price for BuSpar® since November 22, 2000 than they would
have paid for its generic equivalent.

The lawsuit seeks treble damages on behalf of the purchasers, as well as
disgorgement of Bristol's profits from the illegal conduct.

Michael D. Hausfeld, an antitrust attorney at Cohen, Milstein, Hausfeld
& Toll, P.L.L.C. said that ``this case is the latest example of the
willingness
of major pharmaceutical companies to assert frivolous patent claims in
an effort to illegally extend their monopoly on the sale of patented
drugs.'' Mr. Hausfeld
explained, ``We cannot expect this egregious conduct to stop until the
pharmaceutical companies are punished for their illegal, monopolistic
conduct. Without a
strong remedy under the antitrust laws, Bristol and other companies that
engage in similar conduct have no reason to refrain from making
meritless patent claims to the FDA. Once a patent is filed with the FDA,
the drug company's monopoly is effectively extended until the courts can
sort out the merits of the claim. In this case,
Bristol enjoyed months of illegal profits before a federal court ordered
them to withdraw their claim for protection from competition by the FDA.
We intend to see that the ultimate purchasers of BuSpar® are
compensated, and that Bristol pays the appropriate penalty for its
conduct.''

Also, representing plaintiff and the class are the law firms of Hanzman,
Criden, Chaykin & Rolnick, P.A., located in Coral Gables, Florida and
Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson located in
Miami, Florida.

Cohen, Milstein regularly litigates plaintiffs' class action cases,
including those involving antitrust, health care, consumer protection,
product liability, civil rights,
securities and other business class actions, as well as environmental
toxic tort actions.

For more information, please contact us at lawinfo@cmht.com.

Contact: Cohen, Milstein, Hausfeld & Toll, P.L.L.C. , Daniel A. Small,
202/408-4600