KING DRUG COMPANY OF FLORENCE, INC vs. CEPHALON, INC., ET AL

Filing 261

ORDER THAT DEFENDANT CEPHALON, INC.'S MOTION TO DISMISS THE DIRECT PURCHASERS' FIRST CONSOLIDATED AMENDED COMPLAINT AND THE RITE AID COMPLAINT; GENERIC DEFENDANTS MOTION TO DISMISS THE AMENDED COMPLAINTS OF THE DIRECT PURCHASER PLAINTIFFS AND END PAYOR PLAINTIFFS; DEFENDANT CEPHALON, INC.'S MOTION TO DISMISS THE WALGREEN COMPLAINT AND THE GENERIC DEFENDANTS MOTION TO DISMISS THE COMPLAINT FILED BY WALGREEN CO., ET AL ARE DENIED. DEFENDANTS SHALL FILE ANSWERS TO PLAINTIFFS COMPLAINTS ON OR BEFORE 4/19/10. A RULE 16 CONFERENCE IS SHEDULED FOR 10:00 ON 4/22/10; ETC.. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 3/29/10. 3/29/10 ENTERED AND COPIES MAILED, E-MAILED AND MAILED TO UNREPS.(jl, ) (Additional attachment(s) added on 4/6/2010: # 1 order) (jl, ).

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ______________________________________________________________________________ : KING DRUG COMPANY OF FLORENCE, INC., : CIVIL ACTION et al., : Plaintiffs, : : v. : No. 2:06-cv-1797 : CEPHALON, INC., et al., : Defendants. : __________________________________________:___________________________________ : VISTA HEALTHPLAN, INC., et al., : CIVIL ACTION Plaintiffs, : : v. : No. 2:06-cv-1833 : CEPHALON, INC., et al., : Defendants. : __________________________________________:___________________________________ : APOTEX, INC., : CIVIL ACTION Plaintiff, : : v. : No. 2:06-cv-2768 : CEPHALON, INC., et al., : Defendants. : __________________________________________:___________________________________ : FEDERAL TRADE COMMISSION, : CIVIL ACTION Plaintiff, : : v. : No. 2:08-cv-2141 : CEPHALON, INC., : Defendant. : __________________________________________:___________________________________

ORDER AND NOW, this 29th day of March, 2010, upon consideration of Defendants' Motions to Dismiss, Plaintiffs' responses in opposition, and for the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED as follows: 1) In The King Drug Direct Purchaser Class Action - King Drug Co. of Florence, Inc., et al. v. Cephalon, Inc., et al., 2:06-cv-1797, "Defendant Cephalon, Inc.'s Motion to Dismiss the Direct Purchasers' First Consolidated Amended Complaint and the Rite Aid Complaint," (doc. no. 200); "Generic Defendants' Motion to Dismiss the Amended Complaints of the Direct Purchaser Plaintiffs and End Payor Plaintiffs," (doc. no. 201); "Defendant Cephalon, Inc.'s Motion to Dismiss the Walgreen Complaint," (doc. no. 211); and "The Generic Defendants' Motion to Dismiss the Complaint Filed by Walgreen Co., et al.," (doc. no. 216), are DENIED. 2) In The Vista Healthplan End Payor Class Action - Vista Healthplan, Inc., et al. v. Cephalon, Inc., et al., 2:06-cv-1833, "Defendant Cephalon, Inc.'s Motion to Dismiss the Amended Consolidated Class Action Complaint of End Payors and the Amended Complaint of Avmed, Inc.," (doc. no. 86); and "Generic Defendants' Motion to Dismiss the Amended Complaints of the Direct Purchaser Plaintiffs and End Payor Plaintiffs," (doc. no. 87), are GRANTED in part and DENIED in part. The Motions are GRANTED in that the Vista Healthplan End Payor Class Plaintiffs' claims under the antitrust statutes of Florida (Count IV - ¶ (d)), Louisiana (Count IV ¶ (i)), Massachusetts (Count IV - ¶ (k)) and New York (Count IV - ¶ (r)), and claims under the consumer protection statutes of Kentucky (Count IV - ¶ (h)), Louisiana (Count IV - ¶ (i)) and Wisconsin (Count IV - ¶ (z)) are DISMISSED. The Motions

are DENIED in all other regards. 3) In The Apotex Litigation - Apotex, Inc. v. Cephalon, Inc., et al., 2:06-cv-2768, "Defendant Cephalon, Inc.'s Motion to Dismiss Counts III Through XIII of the Amended Complaint and to Strike Prayers for Relief," (doc. no. 157); and "Generic Defendants' Motion to Dismiss Apotex's First Amended Complaint," (doc. no. 158), are DENIED. 4) In The F.T.C. Litigation - Fed. Trade Comm'n v. Cephalon, Inc., 2:08-cv-2141 "Defendant Cephalon, Inc.'s Motion to Dismiss the First Amended Complaint," (doc. no. 43), is DENIED. IT IS FURTHER ORDERED that Defendants shall file Answers to Plaintiffs' Complaints on or before April 19, 2010. A Rule 16 Conference is scheduled for 10:00 a.m. on Thursday, April 22, 2010, in a Courtroom to be assigned. Counsel should contact Chambers at [phone], two (2) days prior for Courtroom assignment. Attendance is limited to two (2) counsel per party. At any time, but no later than April 19, 2010, counsel may submit to the Court suggestions regarding the scheduling of fact discovery; expert discovery; depositions, including coordination with depositions in the bifurcated Apotex patent declaratory judgment action; and dispositive motions. The submissions are limited to three (3) pages, and joint submissions are encouraged.

BY THE COURT:

_____________________________ MITCHELL S. GOLDBERG, J.