On November 4, 2021 the end-payor class in antitrust litigation alleging anticompetitive conduct in the market for combination antiretroviral therapy (“cART”) drugs announced a $10 million settlement with Defendants Bristol-Myers Squibb Company and E.R. Squibb & Sons, L.L.C. (“BMS”). The cART antitrust litigation is pending in the Northern District of California before Judge Chen.

This is the first settlement announced in the cART litigation, which has been pending since 2019 and alleges that drug makers through a series of agreements frustrated competition from generic products in the cART market. The damages classes proposed in the settlements include the drugs Atripla, Evotaz, Complera, Stribild, and Truvada, and $7.5 million will be allocated to end-payors on a pro rata basis for purchases from May 14, 2015 through and until October 13, 2021. The BMS drugs involved in the settlement are relatively low revenue; Evotaz had less than $70 million in revenues in the U.S.

The settlement reflects that Judge Chen has ruled that BMS cannot prevail on a theory of overarching conspiracy for the cART market, including any claims that BMS conspired with Janssen and Gilead with respect to a larger cART market. $5 million of the settlement is allocated to “TPP purchasers of Evotaz and of Atripla, Truvada, Complera, and Stribild for forgoing the possibility of getting appellate reversal of this Court’s decision that BMS is not liable for participating in Gilead’s overall monopolization.”

Staley et al. v. Gilead Sciences Inc., et al., No: 3:19-cv-02573 (N.D. Cal.)