Top UK Court to Decide Who Covers Pfizer’s Legal Fees in an £89M Antitrust Lawsuit

Britain’s Supreme Court will reportedly hear arguments from the drug companies Pfizer and Flynn Pharma who say a government agency should cover the costs of an £89.4 million antitrust lawsuit alleging the price-fixing of an anti-epilepsy drug.

Pfizer and Flynn Pharma beat the antitrust lawsuit brought by the Competitions and Markets Authority alleging that the companies engage in a scheme that resulted in excessive prices for Epanutin capsules starting in 2016. Pfizer would have faced an £84.2 million fine, and Flynn Pharma £5.2 million, but the agency lost in 2018 when an appeals court ruled it had not applied the right legal standard to the drug companies’ actions, according to Law360.

The agency pointed out that the price of Pfizer’s Epanutin capsules had increased by 780% to 1,600% in 2016 and that Flynn Pharma’s drug had increased by up to $2,600% at the same time, assessing millions in fines and ordering the companies to reduce prices. However, a court of appeals found that the agency had misapplied the legal test used to establish unfair drug prices.

For its part, the Competition and Markets Authority said the appellate court decision is beneficial in further refining the use of the legal standard.

“Today’s judgment is a good result,” said the Chief Executive of the agency at the time. “The CMA was right to appeal the CAT’s judgment. We will now get on with the elements of the case against Pfizer and Flynn Pharma that the court has decided to refer back to us.”

Now, however, the drug companies say that the government watchdog should pay their legal fees. Generally, the party that loses a legal action is required to pay the costs; however, government agencies who get it wrong, but pursued the legal action as part of their function, can get a pass.

The Supreme Court will now revisit whether government watchdogs, such as the Competitions and Markets Authority, should be on the hook after losing in court.

Do you take Epanutin? What do you think of the Antitrust suit allegations? Tell us in the comment section below!

The CMA was instructed by Mark Hoskins QC, David Bailey, Hugo Leith, and Jennifer MacLeod of Brick Court Chambers.

The Pfizer Antitrust Lawsuit is The Competition and Markets Authority v. Flynn Pharma Ltd. and others, Case No. UKSC 2020/0113, in the U.K. Supreme Court.

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