Mylan’s Appellate Win Affirming Summary Judgment in Securities Class Action

On Monday, April 15, 2024, the U.S. Court of Appeals for the Second Circuit affirmed the U.S. District Court for the Southern District of New York’s granting of summary judgment in favor of Cravath client Mylan in a securities class action related to Mylan’s marketing, pricing and classification of EpiPen as well as alleged conduct concerning generic drug price fixing and market allocation.

Plaintiffs claimed that Mylan misled the market by failing to disclose that it was allegedly engaged in a scheme to foreclose competition for its life‑saving EpiPen product; defrauding the government out of millions of dollars under the Medicaid Drug Rebate Program (“MDRP”); and conspiring with competitors to fix prices and allocate markets for 21 different generic medicines. In March 2023, the district court granted summary judgment in favor of Mylan on all claims. The decision represented one of the few resolutions of a federal securities fraud litigation at summary judgment entirely in favor of defendants.

On appeal, the Second Circuit affirmed the dismissal in its entirety. In a first ever appellate decision in a securities case involving allegations of MDRP fraud, the Court held plaintiffs had failed to show that the district court erred in finding insufficient evidence of scienter. Similarly, regarding plaintiffs’ allegations of pricing fixing and market allocation of certain generic medicines, the Court held that plaintiffs failed to show “loss causation.”

The Cravath team was led by partner David R. Marriott, who argued the appeal, and included practice area attorney Benjamin J. Bauer and associates Maximilian J. Auerbach, Tomas Kemmery and Franklin R. Li.

The case is In re Mylan N.V. Securities Litigation, No. 23‑720 (2d Cir.).