In re Bystolic Antitrust Litigation

Background

The court considered a motion to transfer venue in two related sets of consolidated, proposed class-action cases involving alleged antitrust violations concerning the anti-hypertension drug Bystolic. The Direct Purchaser Actions were brought by direct purchasers of Bystolic and generic equivalents. The End Payor Actions were brought by indirect purchasers, including consumers, health insurers, and welfare plans. The Plaintiffs sued manufacturers and marketers of Bystolic, called the Forest Defendants, and other drug manufacturers, called the Generic Defendants.

The Plaintiffs alleged that the Forest Defendants and Generic Defendants entered into anticompetitive settlement and licensing agreements that delayed the production of generic equivalents. According to the allegations described in the order, earlier generic entry would have reduced Bystolic’s price and benefited consumers.

The Defendants asked to transfer the cases to the District of New Jersey. They argued that none of the Defendants were located in the Southern District of New York, 11 of 14 United States-based Defendants were headquartered in New Jersey, relevant third parties and witnesses were in New Jersey, only two named Plaintiffs resided in the Southern District of New York, and the alleged decision to delay generic entry occurred in New Jersey and elsewhere.

Legal standard

Under 28 U.S.C. § 1404(a), a federal district court may transfer a civil case to another district where it could have been filed when transfer would serve the convenience of the parties and witnesses and the interests of justice. The court first asks whether the case could have been brought in the proposed district. The parties agreed that these federal and state antitrust cases could have been filed in the District of New Jersey. The court therefore focused on balancing the relevant private and public interests.

The court considered the Plaintiffs’ choice of forum, witness convenience, access to documents and other evidence, party convenience, the location of the events at issue, the ability to require unwilling witnesses to attend, and the parties’ relative resources. The party seeking transfer bears the burden of making a strong case, and the court has substantial discretion in balancing these factors.

Court’s analysis

The Plaintiffs’ choice of forum weighed against transfer. Because these were proposed class actions involving geographically dispersed class members, the choice received less weight than it would in an individual case. But it was not entitled to no weight. The court noted that many Plaintiffs had connections to New York, five named Plaintiffs resided in New York State, and two of those Plaintiffs resided in the Southern District of New York. The Plaintiffs also alleged that the challenged agreements were executed in this district. The Defendants offered no evidence that the Plaintiffs had improperly chosen this forum to obtain an unfair advantage.

Witness and party convenience weighed only slightly in the Defendants’ favor. The Defendants identified witnesses and parties in New Jersey, while the Plaintiffs identified witnesses in New York. The court emphasized that New York and New Jersey are close to each other, that New Jersey residents could travel to New York City, and that some witnesses could be deposed remotely or at a convenient location. The court therefore found that this factor was not enough to meet the Defendants’ burden.

The remaining factors were neutral or weighed against transfer. Although many documents might be in New Jersey, the court found that documents were readily portable and could be shared electronically. The location of the operative facts was neutral because the parties disputed where the agreements were negotiated, the agreements were executed in New York, and the intent, effects, and consequences of the agreements were central issues. The ability to compel unwilling witnesses was neutral because the Defendants did not identify a witness who was outside the Southern District of New York’s jurisdiction but within the District of New Jersey’s jurisdiction. The parties agreed that their relative financial means were neutral.

Disposition

The court held that the balance of the relevant factors weighed against transferring venue. On January 15, 2021, Judge Lewis J. Liman denied the Defendants’ motion to transfer venue and directed the Clerk of Court to terminate the motion at Docket No. 79.