RITE AID CORPORATION et al v. CEPHALON, INC. et al

Filing 91

MEMORANDUM AND ORDER THAT THE LIABILITY PORTION OF THE UPCOMING TRIAL WILL BE DIVIDED INTO TWO PHASES. THE FIRST PHASE WILL INVOLVE ONLY PROOFS REGARDING THE ALLEGED ANTITRUST VIOLATIONS UNDER THE RULE OF REASON. IF THE JURY ANSWERS THE VIOLATION QUE STIONS IN PLAINTIFFS' FAVOR, A SECOND PHASE INVOLVING CAUSATION AND INJURY WILL COMMENCE. IT IS FURTHER ORDERED THAT ONLY DURING THE SECOND CAUSATION/INJURY PHASE WILL THE JURY BE INFORMED THAT THE RELEVANT PATENT WAS INVALIDATED IN A PROCEEDING WHICH OCCURRED AFTER THE CHALLENGED SETTLEMENT AGREEMENTS WERE EXECUTED. IF THE SECOND PHASE OCCURS, THE COURT WILL ACCEPT THE PARTIES' INPUT ON HOW TO INSTRUCT THE JURY REGARDING THE PRIOR PATENT RULING. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 6/8/17. 6/9/17 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________ ___________________________________
:
APOTEX, INC.,
:
CIVIL ACTION
Plaintiff,
:
:
v.
:
No. 2:06-cv-2768
:
CEPHALON, INC., et al.,
:
Defendants.
:
__________________________________________:___________________________________
:
GIANT EAGLE, INC.,
:
CIVIL ACTION
Plaintiff,
:
:
v.
:
No. 2:10-cv-5164
:
CEPHALON, INC., et al.,
:
Defendants.
:
__________________________________________:___________________________________
:
WALGREEN CO., et al.,
:
CIVIL ACTION
Plaintiffs,
:
:
v.
:
No. 2:09-cv-3956
:
CEPHALON, INC., et al.,
:
Defendants.
:
__________________________________________:___________________________________
:
RITE AID CORPORATION, et al.,
:
CIVIL ACTION
Plaintiffs,
:
:
v.
:
No. 2:09-cv-3820
:
CEPHALON, INC., et al.,
:
Defendants.
:
__________________________________________:___________________________________

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ORDER
AND NOW, this 8th day of June, 2017, in accordance with the accompanying
Memorandum Opinion, it is hereby ORDERED that the liability portion of the upcoming trial
will be divided into two phases. The first phase will involve only proofs regarding the alleged
antitrust violations under the rule of reason. If the jury answers the violation questions in
Plaintiffs’ favor, a second phase involving causation and injury will commence.
It is further ORDERED that only during the second causation/injury phase will the jury
be informed that the relevant patent was invalidated in a proceeding which occurred after the
challenged settlement agreements were executed. If the second phase occurs, the Court will
accept the parties’ input on how to instruct the jury regarding the prior patent ruling.

BY THE COURT:
/s/ Mitchell S. Goldberg
______________________________
Mitchell S. Goldberg, J.

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