In re Bystolic Antitrust Litigation

Background

Direct Purchaser Class Plaintiffs moved for permission to serve Torrent Pharmaceuticals, Ltd. by email at the business email address of Mahesh Agrawal, identified as Torrent’s Vice President (Legal) and Company Secretary. End-Payor Plaintiffs joined the motion.

Plaintiffs alleged that defendants, including Torrent, participated in antitrust conspiracies to delay entry of generic versions of the brand drug Bystolic. Torrent is an Indian company.

Direct Purchaser Plaintiffs sent the summons, complaint, and related documents to India’s Central Authority on October 9, 2020, under the Hague Convention on service of judicial and extrajudicial documents. They followed up in February and April 2021 but received no confirmation that service had been attempted. End-Payor Plaintiffs sent their service request and case documents to the Central Authority in January 2021. The package was delivered on February 3, 2021, but they also received no response.

Court’s Analysis

Federal Rule of Civil Procedure 4(f)(3) allows a court to authorize service on a defendant in another country by a method not otherwise prohibited by federal law or an international agreement. The court also considers whether the proposed method is reasonably likely to give the defendant notice, as required by constitutional due process.

The court found that plaintiffs had reasonably attempted service through India’s Central Authority and that intervention was necessary because more than eleven months had passed since the Direct Purchaser Plaintiffs’ attempt and more than seven months had passed since the End-Payor Plaintiffs’ attempt, without a response about service on Torrent.

The court stated that the proposed email method was not prohibited by federal law. India is a signatory to the Hague Convention and objects to certain methods listed in Article 10, including service through postal channels and judicial officers. The court concluded that email service was not specifically covered by Article 10 and was not otherwise objected to by India, so the treaty did not prohibit it.

The court also found that email service was likely to reach Torrent. Torrent’s annual report identified Agrawal as its Vice President (Legal), Company Secretary, and compliance officer and listed the proposed email address. The court also noted evidence from another matter showing that Agrawal conducted Torrent business through that email address. The court therefore found that email service was likely to provide Torrent with notice.

Ruling

The court granted the motion for alternative service on Torrent. It ordered that plaintiffs may serve Torrent by email at maheshagrawal@torrentpharma.com. The Clerk of Court was directed to close docket entry 296.