Apotex Inc. et al. vs. Bristol-Meyers Squibb et al.

The Situation

In 2006, Apotex, Bristol-Myers Squibb (BMS), and Sanofi-Aventis (Sanofi) entered into an agreement that sought to settle patent litigation involving the blood-thinning drug Plavix. Under the agreement, the parties undertook to negotiate a license agreement that would resolve the patent suit and, because of an existing consent decree between BMS and the US Federal Trade Commission (FTC), ensure that the agreement would meet with FTC approval. The approval was not obtained, and Apotex launched its generic version of Plavix “at risk.” Subsequently, a US district court found that Apotex infringed the patent at issue. That verdict was upheld by the Federal Circuit.

In 2011, Apotex filed suit against BMS and Sanofi, alleging that they had breached the 2006 agreement and that, but for the alleged breach, Apotex would have benefited from the negotiated license. An expert for Apotex calculated that its damages could have been as high as approximately $3.4 billion.

NERA's Role

A NERA team led by Dr. Sumanth Addanki was asked by counsel to Sanofi and counsel to BMS to assess the damages calculations offered by Apotex’s expert. The NERA analysis demonstrated that the assumptions underlying the calculations were so unrealistic that they simply did not make economic sense. In fact, there was no economically reasonable set of assumptions about the “but for” world under which it could be demonstrated that Apotex suffered any damages whatsoever. Thus, the entire theory of liability was suspect as an economic matter.

The Result

In March 2013, the case went to trial in Florida state court where, after a nine-day trial, a jury returned a unanimous verdict in BMS’s favor on liability. Sanofi had already been dismissed from the case through a summary judgment ruling.