EpiPen owner and all-around practicer of the deadly sin avarice Mylan pharmaceuticals has yet another serious lawsuit on its hands. Sanofi is suing the pharmaceutical monster for damages, saying that Mylan “engaged in illegal conduct to squelch” Sanofi’s attempts to compete against them in the West Virginia market. As I wrote about this week, Mylan threatened to sue West Virginia for attempting to save money by considering giving competitor Sanofi’s Auvi-Q ephedrine injector system a “preferred status” classification for Medicaid payments. Arstechnica has gotten their hands on Sanofi’s lawsuit, filed this past Monday. Amongst other things, Sanofi claims that the now infamous EpiPen price hikes were not simply a way to generating more profits for the greedy monopoly, they were the culmination of dirty dealings in trying to monopolize the market.
Mylan’s scheme to deprive consumers of access to Auvi-Q® was undertaken with the specific anticompetitive intent and purpose to unlawfully maintain its EpiPen® monopoly in the United States:
- Mylan took the extreme step of explicitly requiring schools to certify in writing that they would not use rival EAI drug devices as a condition of Mylan’s EpiPen® discount program for schools.
- Mylan misclassified the EpiPen® to the federal and state governments and thus paid substantially less in required rebates for patients covered by Medicaid. The improper rebate classification for Medicaid, in turn, allowed Mylan to subsidize its deep conditional rebates to commercial third-party payors and states.
- With knowledge of when Sanofi could begin marketing Auvi-Q®, Mylan ran up the price of the EpiPen® substantially before the launch of Auvi-Q®. The significantly higher prices ensured that, once Mylan began to offer its new, large conditional rebates from the higher price level, third-party payors would (and did) find it practically impossible to refuse these rebates that Mylan leveraged across its virtual 100% share of the EAI drug device market.
- Mylan engaged in misleading advertising and other promotional activities in order to poison the well for Auvi-Q® with doctors, key thought leaders, and consumers.
- Mylan artificially raised Sanofi’s costs to market Auvi-Q®, and patients’ costs to purchase Auvi-Q®, by ensuring that Auvi-Q® would be covered with a higher co-pay than the EpiPen®—if Auvi-Q® were covered by third-party payors at all.
Mylan has been paying out money for violations and earlier this month was hit with a class-action suit as well as a recall of some of their EpiPens. This couldn’t be happening to a nicer group of pharmaceutical executives.