Elizabeth Kates

Generic-drug makers sought to defeat a bid to certify proposed classes comprising thousands of pharmacies that indirectly purchased and resold generics at the center of sprawling price-fixing litigation, telling a Pennsylvania federal court Monday that certification would result in an "unmanageable trial." In a 66-page, partially redacted memorandum, drugmakers including Glenmark Pharmaceuticals and Teva Pharmaceuticals argued that differences between the pharmacies' purchasing and reimbursement practices rendered their claims inappropriate for class certification. The drugmakers are accused in the multidistrict litigation of a conspiracy to anticompetitively raise the price of the cholesterol medication pravastatin. "There is no 'one-size-fits-all' pathway from an alleged list-price increase to a pharmacy's net cost, and no uniform answer to whether any pharmacy bore any net overcharge," the memorandum said. "These individualized issues predominate and preclude class certification." The drugmakers' memorandum opposes certification of two classes of privately held pharmacies that purchased defendants' pravastatin products from May 1, 2013, to Dec. 31, 2018. Proposed by five named plaintiff pharmacies, one class would cover pharmacies across the U.S. seeking injunctive relief against any continued effects from the alleged conspiracy. The other class would cover pharmacies seeking damages under state and territorial laws across 47 jurisdictions in connection with their drug purchases. Plaintiffs estimated the classes would contain thousands of members. "For years, purchasers had no meaningful ability to avoid the economic harm caused by a coordinated scheme that distorted competition in the pravastatin market and forced resellers and purchasers to pay artificially inflated prices for a widely prescribed generic drug," Christian Hudson, an attorney for the indirect reseller plaintiffs, said in a Monday statement. "We are hopeful the court will recognize the importance of allowing this case to move forward on behalf of all those harmed, so they can pursue justice collectively and recover damages from years of unlawful overcharges." But plaintiffs cannot show that alleged overcharges are common across class members because list prices are not a reliable indicator of what pharmacies ultimately paid for pravastatin products, the drugmakers argued in their memorandum. Such a determination would depend on issues specific to each pharmacy such as negotiation prices, reimbursement formulas, customer mixes and individualized contracts, according to the drugmakers. "Plaintiffs here do not and cannot establish, through evidence common to the class, that both alleged upstream overcharges were passed through from wholesalers to each class member; and that any such overcharges were not further passed on (in whole or in part) through reimbursements and pricing to the ultimate payors," the memorandum said. The drugmakers also argued that plaintiffs' proposed nationwide class in particular fails because plaintiffs didn't show a likelihood of future injury that would warrant injunctive relief. "The allegedly unlawful conduct occurred more than a decade ago, those alleged to have engaged in the misconduct have long since left the employ of the defendants, and certain defendants have fully complied with their [deferred prosecution agreements] that have now been dismissed," the drugmakers said, adding later that plaintiffs' "failure to follow through on their claims for injunctive relief confirms their case is about money." Last year, the Pennsylvania federal court certified several sets of classes concerning other generic drugs at issue in the MDL. Drugmakers are challenging that decision before the Third Circuit. Counsel for the drugmakers did not immediately respond to a request for comment Monday. The indirect reseller plaintiffs are represented by Christian Hudson, Alexandra Klein, Jennifer E. Kelly, Claire Esmonde and Charles Barrett of Cuneo Gilbert & LaDuca LLP. The drugmakers are represented by Colin R. Kass, David A. Munkittrick, Bradley I. Ruskin, Grant J. Esposito, David Fioccola, Christopher Ondeck, Bart Williams and Kyle Casazza of Proskauer Rose LLP, Meg Slachetka of Competition Law Partners, Robert W. Manoso, Dimitra Doufekias and Michael B. Miller of Morrison & Foerster LLP, Sheron Korpus, Seth A. Moskowitz and Seth Davis of Kasowitz LLP and Jason Parish, Bradley J. Kitlowski and Caroline Bassett Warren of Buchanan Ingersoll & Rooney PC. The MDL is In Re: Generic Pharmaceuticals Pricing Antitrust Litigation, MDL number 2724, and In Re: Pravastatin Cases, lead case number 2:16-md-02724, in the U.S. District Court for the Eastern District of Pennsylvania.

Jan 26

3 min

Simpson Thacher represented J.P. Morgan Securities and A.G.P./Alliance Global Partners as placement agents in connection with a $130 million registered direct offering by Solid Power, Inc. (“Solid Power”) of a combination of Common Stock, Pre-Funded Warrants and Warrants. Solid Power is developing solid-state battery technology to enable the next generation of batteries for the fast-growing EV and other markets. The Simpson Thacher team included Roxane Reardon, Matt Hart and Margaret Selbe (Capital Markets); Jonathan Cantor and Andrew Wasilick (Tax); George M. Gerstein and J. Pasco Struhs (ECEB); Michael R. Isby (Environmental); Ron Ben-Yehuda, Chandler Gerard-Reimer and Tally Smitas (IP); and Jennie Getsin (Blue Sky).

Feb 2

1 min

Private equity-backed technology firm Liftoff Mobile has launched plans to raise an estimated $711 million in its initial public offering, joining a crowded pipeline of IPO prospects that are slated to go public during the first week of February. The Redwood City, California-based company plans to offer 25.4 million shares at a range of $26 to $30, raising $711 million at midpoint, according to a Thursday filing with the U.S. Securities and Exchange Commission. At midpoint, Liftoff Mobile would command a $5.5 billion fully diluted market value. Simpson Thacher & Bartlett LLP advised the company, while Davis Polk & Wardwell LLP advised its underwriters. Liftoff Mobile, which is backed by private equity giants such as Blackstone and General Atlantic, is an advertising and monetization software for mobile apps. Formed through a merger between Liftoff and Vungle, the company provides an artificial intelligence-powered platform that supports user acquisition and monetization services for app advertisers and publishers in industries such as social media, finance, entertainment, and gaming, according to the SEC filing. The company plans on granting its underwriters a 30-day option to purchase up to an additional 3.18 million shares at the IPO price, and the offering is set to price during the week of Feb. 2. Liftoff Mobile plans to list its shares on the Nasdaq under ticker symbol LFTO. Liftoff Mobile joins a slew of other IPO prospects anticipated to make their public debuts during the week of Feb. 2. Forgent Power Solutions, a manufacturer serving industrial and data center customers, on Jan. 26 unveiled plans to raise an estimated $1.5 billion in its IPO by offering 56 million shares for a proposed price range of between $25 and $29. The company, which is backed by investment firm Neos Partners, designs and makes electrical equipment used in data centers, the power grid, and other energy-intensive industrial facilities. Forgent plans to list its shares on the New York Stock Exchange under ticker symbol FPS. Also on Jan. 26, Bob's Discount Furniture released plans to raise around $350 million in its offering by selling 19.5 million shares at a proposed range of between $17 and $19. In its filing with the SEC, Bob's said investment funds connected to private equity shop Bain Capital would own 75% of the company after the IPO. Bob's plans to list on the New York Stock Exchange under ticker symbol BOBS. Further, oncology firm Eikon Therapeutics on Wednesday told regulators that it plans to raise around $300 million in its offering by selling 17.6 million shares for a price range between $16 and $18. The company, which develops therapies for immuno-responsive cancers, plans to list on the Nasdaq under ticker symbol EIKN. The Simpson Thacher team advising Liftoff Mobile in its IPO includes Joshua Ford Bonnie, Jonathan Ozner, and Katharine Thompson. The Davis Polk team advising the underwriters includes Michael Kaplan and Yasin Keshvargar.

Jan 30

2 min

Pandora Media has resolved yearslong copyright infringement litigation by Robin Williams' estate, Lewis Black, and other comedians, who alleged the streaming service owes millions for wrongfully profiting off their performances and works without licensing agreements, following a settlement conference in California federal court Friday. On Jan. 29, U.S. Magistrate Judge Maria A. Audero of the Central District of California handed down a minute order that stated the parties had conducted a settlement conference ending in a resolution to the four-year-old case in its entirety, including all member and related cases on the docket. A long-form agreement will be submitted in the coming weeks, according to the minute order. The comedians, who include Black, George Lopez, and Ron White, along with Williams' estate, sued Pandora in 2022, alleging they were owed $60 million in royalties collectively. The plaintiffs argued Pandora illegally aired their comedy acts and works without permission, in violation of the Copyright Act. Shortly after filing their separate suits, the comedians consolidated the claims against Pandora into a single action. In September 2022, Pandora hit back against Black and licensing agency Spoken Giants LLC with antitrust counterclaims, arguing they were part of a "cartel" seeking to monopolize the licensing of comedians' recorded performances. The following month, U.S. District Judge Mark C. Scarsi booted Pandora's competition counterclaims, finding the streaming giant didn't back up its licensing monopoly "conspiracy" argument with enough facts. Pandora amended its antitrust counterclaims, but Judge Scarsi dismissed them again the following year, finding it failed to adequately allege enough facts to support its claims of anticompetitive conduct. In August 2024, both sides filed dueling summary judgment bids. The comedians argued the uncontested facts clearly showed the defendant engaged in copyright infringement by airing the recordings without specific licensing deals from the comedians, while Pandora argued the entire dispute was manufactured out of nothing. Furthermore, Pandora contended it only needs to license the recordings from the record labels that made those recordings, not the comedians themselves. In September, Judge Scarsi sought a special master to review the fight and make a recommendation after holding oral arguments on both motions. Last summer, Special Master Suzanne H. Segal recommended that Judge Scarsi hand Pandora its summary judgment win, finding the comedians waited too long to sue. She found that Pandora is entitled to summary judgment on the basis of its implied license and equitable estoppel defenses due to the comedian's purported knowledge and acceptance of Pandora's use of their routines for many years without objection. Therefore, it is unnecessary to reach the other arguments raised by Pandora, the special master found. However, Judge Scarsi sent the summary judgment motions back to the special master in September for further consideration. According to his order, the comedians argued at a hearing that the first two elements are "indisputably unmet in their estimation," but Judge Scarsi said this does not shut down an implied license defense. "True, the circuit court has left this defense underdefined outside the well-trodden work-for-hire context of Effects Associates and its progeny. No binding decisions in the parties' cited authorities or in the court's independent research expressly recognize that a defense may lie outside Effects Associates' three-element test," the judge said. "Conversely, however, no binding decisions preclude one." Judge Scarsi directed the comedians and Pandora to engage in settlement conferences before U.S. Magistrate Judge Maria Audero. Judge Scarsi said the parties had "consistently represented that they have expended significant time and resources toward this litigation" and that more proceedings before the magistrate judge would cause them to incur more expenditures "given the anticipated scope of the court's instructions for further development." "We at SiriusXM and Pandora are pleased to have resolved this matter amicably, with an outcome that affirms the legality of our long-standing approach to licensing spoken-word comedy recordings. While the specific terms of the settlement are confidential, we can disclose that the companies did not take any literary work license from plaintiffs or Word Collections, nor did Pandora or SiriusXM make any payments to plaintiffs or Word Collections for the literary work rights at issue in the lawsuits. We look forward to continuing our mutually beneficial relationship with comedians, using the same licensing practices that have long been standard across streaming services, broadcasters, and other platforms that help comedians and spoken-word artists share and promote their work." Richard Steven Busch of King and Ballow Law Offices, told Law360 that the parties settled the case amicably. The plaintiffs are represented by Richard Steven Busch, Seth Davis Mumy, David M. Niemierzycki, and Andrew H. Davis of King and Ballow Law Offices, Daniel B. Asimow of Arnold & Porter Kaye Scholer LLP. Pandora is represented by Christopher Kelly, Allison Aviki, David Yolkut, John Nadolenco, Douglas A. Smith, Max W. Hirsch, Megan P. Fitzgerald, and Michael A. Calvanico of Mayer Brown LLP, and Paul M. Fakler and Jacob B. Ebin of King and Spalding LLP. The case is Yellow Rose Productions Inc. v. Pandora Media LLC, case number 2:22-cv-00809, in the U.S. District Court for the Central District of California.

Feb 2

4 min

Other than the Red Sox and a few muggy late summer days, few things were hotter in September than the Boston legal market. Morgan Lewis made four lateral hires, WilmerHale welcomed back an experienced life sciences attorney, and Simpson Thacher snagged a former Goodwin banking lawyer. Here are September's legal moves in Greater Boston. Morgan Lewis Former Morgan Lewis & Bockius LLP partner John Boxer has rejoined the firm in the private client group after spending more than 10 years as general counsel and chief operating officer of a private, multifamily office. Boxer will be based in Morgan Lewis' Boston and Philadelphia offices, the firm announced. He told Law360 Pulse by email that he decided to return to the firm in part due to its reputation for client service excellence, as well as a deep bench of exceptional talent. "I know this firsthand based on my years with the firm and in my work with firm lawyers and professionals while in-house," he said. "This is also how the industry views the Morgan Lewis team. I am thrilled to return and am excited to hit the ground running." More Morgan Lewis The former head of Nutter McClennen & Fish LLP's mergers and acquisitions and private equity practice, as well as two of his colleagues, have joined Morgan Lewis & Bockius LLP, the firm announced. Partners Shannon Zollo, Joshua French and Meghan Kelley have come aboard the firm's Boston office. "When the opportunity to join Morgan Lewis came about, we were thrilled to move our practices to the firm's expansive platform," Zollo told Law360 Pulse in an email on Wednesday. The trio advises on M&A; debt, equity and venture capital transactions; and corporate governance, according to Morgan Lewis. The partners bring strong relationships with investment banks and Boston businesses, and represent clients across such industries as life sciences, healthcare, technology, manufacturing, consumer retail and defense. WilmerHale Andrea Paul, an attorney specializing in the life sciences, is returning to private practice with WilmerHale, after more than nine years as an in-house counsel for several pharmaceutical and biotechnology companies. Paul joins the WilmerHale Boston office as a partner in the life sciences group on Oct. 6. She had served as chief legal officer and corporate secretary for Zentalis Pharmaceuticals, which is represented by WilmerHale. Paul said in a statement to Law360 Pulse that joining WilmerHale was an "exciting opportunity" to bring her in-house perspective to the life sciences group after being inside biotech companies for nearly a decade. Paul said in her statement. "As a client, I always admired the attorneys at WilmerHale, and I'm excited to be joining this talented team." Simpson Thacher Simpson Thacher & Bartlett LLP has added Elizabeth Kates, a former Goodwin Procter LLP attorney who specializes in debt financing transactions, as a partner in its Boston office. Kates will work as part of Simpson Thacher's banking and credit practice, with a focus on advising private equity sponsors, lenders, and private and public companies on structuring and negotiating both secured and unsecured debt financing transactions, according to the firm's announcement. Kates regularly assists clients with matters such as acquisition financings, leveraged buyouts, recapitalizations, refinancings and restructurings, according to Simpson Thacher. She is experienced working in industries such as financial services, manufacturing, healthcare and technology, according to the firm. "I am thrilled to join such a multifaceted financing team and to be part of the firm's growth in Boston," Kates said in a statement. "I look forward to working with my new colleagues." Goodwin Goodwin Procter LLP announced that it has tapped former Sidley Austin LLP partner Leonard Wood to lead its shareholder activism and takeover defense practice. Wood has joined Goodwin as a partner in the firm's New York and Boston offices, the firm said. Wood began as co-chair of the shareholder activism and takeover defense practice, and was slated to take over as chair effective Wednesday, according to the announcement. Wood told Law360 Pulse in an interview that he joined Goodwin because he saw an opportunity to build out what he views as a top shareholder activism practice at a dynamic global law firm. "Shareholder activism is now a fixture of public company life in America and really worldwide," Wood said. "Goodwin has long-standing relationships across industries and decades of experience guiding clients through complex and contested situations. I can already see on day one, there's a lot to do. It's a very fast-moving field, and it was a really exciting time to come here." Cooley Cooley LLP has grown its debt finance practice in Boston with the addition of Choate Hall & Stewart LLP attorney Dallas Cruz. Cruz has joined the firm as a partner after spending the last six years at Choate, where she worked earlier in her career, as a partner in Choate's private equity group, Cruz told Law360 Pulse. "Cooley's platform provides me with the opportunity to continue to grow my practice on a larger scale, with additional resources and capabilities to better serve my clients," Cruz told Law360 Pulse in an email. In her practice, Cruz represents private equity sponsors, private and public company borrowers, and financial institutions in a variety of complex transactions, including acquisition financings, asset-based credit facilities, fund financings and workouts across industries, her firm biography said. Choate Choate has brought attorney Luke Barrett aboard as a principal in its finance and restructuring group, the firm announced, saying he will advise clients on a wide range of restructuring, bankruptcy and insolvency matters, including large Chapter 11 cases and complex out-of-court restructurings. Choate touted Barrett's experience representing lenders, debtors, secured and unsecured creditors, agents, trustees and equity holders in Chapter 11 proceedings involving multinational, publicly traded companies across a wide range of industries. He has participated in transactions valued at more than $340 million, the firm said, including representing lenders in debtor-in-possession financings, senior secured term and first-lien term loans, and revolving credit facilities. "Our restructuring and bankruptcy practice continues to see strong demand and Luke's experience handling high-profile, complex restructuring and bankruptcy proceedings will be an immediate asset to our clients," said John Ventola, chair of the practice group. "He brings the strategic insight and practical judgment needed to guide our clients through complex insolvency challenges." Paul Hastings Paul Hastings LLP announced that it has expanded its global private equity practice and Boston team with James Curley, a longtime Goodwin Procter LLP partner. Curley represents private equity firms and their portfolio companies, as well as early- and late-stage growth companies, in transactions including leveraged buyouts, add-on acquisitions and dispositions. In an interview with Law360 Pulse, Curley said it was a difficult decision to leave Goodwin. "Goodwin is a wonderful firm," Curley said. "I've been there almost 30 years. I've spent my whole career to date there, other than a two-year stint where I went in-house, and I've got wonderful friends there." But Paul Hastings impressed him for several reasons. "They're starting to take market share from some firms that are above them, which is hard to do in the market," he said. Verrill Dana Jay McCormack, a former acting U.S. attorney in New England, who recently left the public sector after serving for 15 years as a prosecutor at the county, state and federal levels, has joined Verrill Dana LLP's Boston office, the firm announced. McCormack was welcomed this week to Verrill as a partner in its healthcare and life sciences practice, as well as the white collar defense and government enforcement group, according to a statement. He arrived at the firm following a six-year stint at the U.S. Department of Justice, spending the last nine months as acting U.S. attorney for New Hampshire. McCormack said in a statement that one of the primary reasons he chose Verrill was its "exceptional reputation as a national leader in both health care law and white-collar defense." "As the firm continues to grow strategically, I am excited to utilize the experience I have gained over almost a decade devoted to prosecuting health care fraud and complex white-collar cases, working alongside a team of highly respected attorneys and helping to expand the depth and reach of our combined capabilities," he said. Womble Bond Womble Bond Dickinson announced that it has expanded its energy and natural resources team with two new hires, including Jason Marshall, who came to the Boston office following his tenure as deputy secretary and special counsel for the Massachusetts Executive Office of Energy and Environmental Affairs. Prior to his new role, Marshall had spent much of his legal career in a variety of government posts. He oversaw litigation on behalf of the six New England governors before the Federal Energy Regulatory Commission and the D.C. Circuit as the deputy executive director and general counsel of the New England States Committee on Electricity, and held legal positions within the Massachusetts Department of Public Utilities and the Massachusetts State Senate. "During my time in government, I admired WBD from the outside looking in because of the quality of its counsel," he wrote in an email. "The attorneys at WBD demonstrated not only the highest level of technical expertise but also a deep understanding of the policy landscape that informed their engagement." Whoop Wearable technology company Whoop Inc. announced that it has found its new top attorney and administrative officer in Jason Lynch, the former general counsel for venture capital firm Foundry. Lynch joined the Boston-based Whoop as its chief administrative officer and chief legal officer, according to the announcement. While at Foundry, Lynch previously worked with Whoop and other high-growth companies. "I have admired Whoop and its team since 2019 when Foundry first invested," Lynch said in the announcement. "Since then, Whoop has expanded not only the scale of its operations, but also the scale of its vision for what continuous health monitoring can do to transform the quality of people's lives. I could not be more excited to be joining Whoop to help build its future and advance that mission."

Oct 1

8 min