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“marketing and selling,” and rules of contract
construction under New Jersey law. In a July
2013 opinion, the Third Circuit ordered Mylan’s
breach of contract claim against GSK to pro-
ceed to trial. The Third Circuit did, however,
affirm the dismissal of Mylan’s claims against
Apotex.
At trial in March 2014, the Alston & Bird team
called a number of witnesses to testify about
the intent of Mylan and GSK in entering into
the Amended GSK-Mylan Settlement Agree-
ment. Witnesses included business person-
nel from Mylan, lawyers from both Mylan and
Alston & Bird who were involved in drafting
the 2007 Mylan-GSK settlement agreement,
and a pharmaceutical marketing expert. The
team also presented deposition testimony
from GSK’s and Apotex’s employees and in-
house counsel. Finally, Alston & Bird called a
damages expert to explain Mylan’s requested
damages of $119.7million in terms of lost prof-
its, price erosion and shelf stock adjustment.
In defense, GSK argued that entering into the
GSK-Apotex Supply Agreement in order to
settle Apotex’s lawsuit against GSK was within
the meaning of the phrase “marketing and
selling,” as the phrase was intended by Mylan
and GSK in drafting the GSK-Mylan Settlement
Agreement. GSK also disputed Mylan’s dam-
ages calculations and argued that Mylan was
not entitled to any damages because GSK and
Apotex could have structured their settlement
in other ways that concededly would have
complied with the GSK-Mylan Settlement
Agreement. GSK also argued that Mylan’s
damages calculations were inflated due to
Mylan failing to mitigate its damages because
it declined to lower prices for some customers
that requested price reductions.
The jury returned its verdict in favor of Mylan
in less than two hours. The jury’s ultimate
award of $106.7 million in damages represents
the total amount of lost profits requested
by Mylan. The jury also found that Mylan’s
damages award should not be reduced by
any amount due to Mylan’s alleged failure
to mitigate damages. Mylan is now pursu-
ing a permanent injunction to preclude GSK
from continuing to supply Apotex with Par-
oxetine CR; an accounting to assess whether
GSK increased its supply of Paroxetine CR to
Apotex in the months immediately prior to
trial; and additional monetary awards for pre-
judgment interest, postjudgment interest and
costs. The ultimate damages award against
GSK could easily exceed $120 million.
Alston & Bird litigation team members
included Frank Smith from the Atlanta office;
Michael Johnson, Natalie Clayton, Gary Adam-
son, Leah Feinman, Wade Perrin, Amanda
Factor and Nora Cropper from the New York
office; and Garret Malter and Judy Howard,
also from the Atlanta office.
Secured Denial of Class Certifica-
tion in Major Privacy Litigation
An Alston & Bird litigation team recently won
a major victory for a retailer that was accused
of violating state and federal law related to the
alleged use of “spyware” on computers. Most
recently in the long-running case, the United
States District Court for the Western District of
Pennsylvania dismissed most of the plaintiffs’
claims and denied class certification, meaning
only an individual case remains with much
narrower claims.
The plaintiffs alleged that many of the retail-
er’s franchisees used the “spyware” on com-
puters rented to consumers. The “spyware”
allegedly allowed the franchisees to capture
screenshots from computers, log key strokes
