United States District Court for the District of Columbia
January 16, 2004.
IN RE LORAZEPAM & CLORAZEPATE ANTITRUST LITIGATION, This document relates to: MDL No. 1290; HEALTH CARE SERVICE CORPORATION, Plaintiff,
MYLAN LABORATORIES, INC., et al., Defendants, -and- BLUE CROSS BLUE SHIELD OF MINNESOTA, et al., Plaintiffs, v. MYLAN LABORATORIES, INC., et al., Defendants
The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge
Plaintiffs are Blue Cross Blue Shield of Minnesota and of
Massachusetts, the Federated Mutual Insurance Company, and the Health
Care Service Corporation (hereafter collectively called "the Blues").
They opted out of a settlement, premised on antitrust violations by the
defendant, Mylan Laboratories (hereafter "Mylan"), and their complaint
has now survived Mylan's motion to dismiss.
In the complaint filed on December 22, 1998, ten states and the Federal
Trade Commission charged the defendants with entering into illegal
agreements to monopolize the
markets for the generic anti-anxiety drugs, lorazepam and clorazepate.*fn1
The "Scandalous" Allegations
The Blues filed their own complaint alleging that (1) patients were
endangering their health by being forced to forego the lorazepam and
clorazepate they needed, and (2) Mylan employees were engaging in
"insider trading." Mylan also protested that the complaint contained
"inflammatory media sound bites." Mylan moved to strike these allegations
as immaterial but the Blues insisted that "each of the allegations is
necessary to demonstrate the nature and scope of Defendants' scheme to
drive up the prices for Lorazepam and Clorazepate which anti-competitive
scheme resulted in direct injury to Plaintiffs." Memorandum Opinion of
Oct. 4, 2002, quoting Plaintiffs Blue Cross Blue Shield of Minnesota.
Blue Cross Blue Shield of Massachusetts and Federated Mutual Insurance
Company's Memorandum of Points and Authorities in Opposition to
Defendants Mylan Laboratories, Inc. and Mylan Pharmaceuticals Inc.'s
Motion to Strike Portions of Plaintiffs' Second Amended Complaint ("Pls'
Opp.") at 2.
In the Opinion just quoted, Chief Judge Hogan denied Mylan's motion.
Noting that motions to strike are so disfavored that courts require a
showing that the material to be stricken is immaterial and prejudicial or
scandalous, the Chief Judge carefully concluded:
[W]hile by no means having reached a decision on the
merits of this case, the Court finds that the
paragraphs in question may very well be relevant to
Plaintiffs' ability to establish that an antitrust
violation has occurred under pertinent state laws.
Id. at 3-4.
The Blues Are Not Entitled to Insider Trading
The Blues read Judge Hogan's statement as an endorsement of their
theory that learning about Mylan's insider trading is relevant to their
claims and defenses. They, therefore, have demanded all documents "during
the relevant time period" related to insider stock ownership or transfers
of interest. More specifically, they want documents (broadly defined)
pertaining to (1) the adoption by Mylan's Board of Directors of a 1997
Incentive Stock Option Plan, (2) the exercise of options from January
1996 to the present, and (3) Mylan Insider Trading Policies and
communications relating to stock ownership or purchases from January 1996
to the present.
I first find the Blues's interpretation of the Chief Judge's October 4,
2002 order as expressly authorizing this kind of search to be a stretch.
The Chief Judge was dealing with several allegations in the Second
Amended Complaint, including allegations about insider trading that were
claimed to be "prejudicial or scandalous." His determination that all of
these allegations were neither prejudicial nor scandalous is hardly a
ringing endorsement of the theory that insider trading in 2004 has
something to do with a lawsuit predicated on events that occurred in the
winter of 1997-1998. Because the question of whether the information
sought is relevant to any claim or defense under Fed.R.Civ.P. 26 is
open, I have considered it and will resolve it against plaintiffs.
Interestingly, there is a Third Circuit opinion that deals with insider
trading in Mylan stock that occurred contemporaneously with the price
increases at issue in this case and the FTC investigation that led to
this lawsuit. leradi v. Mylan Laboratories, Inc., 230 F.3d 594 (3d Cir.
2000). In that decision, the court indicated that Mylan entered into
"agreements with Profarmco and Gyma that gave it exclusive access" to the
raw materials used to manufacture lorazepam and chlorazepate in November
1997. Id. at 596. Mylan raised its prices on chlorazepate on Janaury
12, 1998 and its prices on lorazepam on March 3, 1998. By June 19, 1998,
Mylan was reporting to the SEC that its revenues had increased 37% and
its net earnings 132%. Id. On July 4, 1998, however, Mylan had to report
to the SEC that the FTC was investigating whether the price increases
were the result of a restraint of trade. Id. According to the Third
Circuit, this report depressed the price of Mylan stock. Id.
It would, therefore, appear that a Mylan insider who knew what the
market did not-that Mylan was going to increase its prices and thereby
gain more revenue-had a window of opportunity to exploit this insider
information from November 1997, the date Mylan entered into agreements
with Profarmco and Gyma, until the price increases in January and March
1998. Once the world knew what the insider did-that substantial price
increases in a market Mylan dominated would increase revenue and enhance
stock prices-the playing field was level and the insider would gain
nothing from the information he had. Given this brief window of
opportunity, the Blues's demand for insider trading "to the present,"
i.e., January 2004, is fatally overbroad. I appreciate that the Blues
want to compare insider trading in what I would call the insider's widow
of opportunity with insider trading thereafter. But, what would that
comparison prove? That insiders traded more at one point and traded less
at another proves nothing. The price of a commodity is a function of
supply and demand and the price of a stock may be affected by the general
demand for stocks as opposed to bonds and other investments. In a bear
market, all stock prices are depressed save for those few contrarian
stocks that buck the market trend. Knowing that several Mylan insiders
bought Mylan stock before the price increases but that other Mylan
insiders sold it when the entire market became bearish proves absolutely
nothing except the obvious-those who play the market try to buy low and
sell high and, on occasion, cut their losses.
To derive some conclusion from the economic behavior of Mylan insiders in
1997-1998 compared with their behavior at a later point in time, when so
many variables are affecting that behavior, is akin to drawing some vast
conclusion about apples and oranges because they are both spherical.
Finally, the Blues's burden in this case is to show that Mylan's price
increases were the result of a restraint of trade and that they were
damaged thereby. Taking the Blues's best case, that the insiders knew the
increases were illegal and were nevertheless trying to profit from them,
does not make it any more likely that the agreements were in restraint of
trade nor does it bear on whether the Blues were damaged.
I will, therefore, deny the Blues's motion to compel.
The Indexing Problem
At the end of this monumental anti-trust case, the remaining parties
have reached an impasse on what is a remarkably fundamental issue for a
case that has such a protracted history. Mylan, the defendant, has
responded to the discovery demands of the many parties that sued it.
Understandably, that production generated what appears to be a mountain
of information. Some of it is in electronic form, and some of it is in
hard copy. The Blues propounded discovery of their own and Mylan
responded by indicating that the documents sought had already been
produced in the discovery given the other plaintiffs and that Mylan had
already been made available to the Blues. The Blues claim that although
they finally got an index to paper documents and CD-ROM's on November 19,
2003, it is utterly insufficient and Mylan owes them
a "meaningful and detailed document index."*fn2 Mylan says that
the Blues have to do their own work and look diligently at what they have
been provided and that Mylan has no further obligation now that Mylan has
provided everything that could possibly be responsive to the Blues's
As an example of the problem, the Blues believe that there are
documents pertaining to a specific managed care department within Mylan
and to a "white paper" written about the impact of Mylan's actions on
managed care entities. Mylan says that everything it has responsive to
that request is in the discovery it has provided the Blues and if they
cannot find it it does not exist. The Blues protest that an unindexed,
document "dump" does not meet Mylan's obligation to match documents with
discovery requests as specifically as possible.
At the discovery conference held in October 2003, I saw this problem
coming and strongly urged the parties to use their creative imaginations
to see how the prior discovery responses could be rendered mutually
searchable by electronic means. Their pleadings reflect, however, that
they did not do so. Hence, the rock remains at the bottom of the hill,
exactly where it was in October.
I hope the parties appreciate that this problem is insoluble. I also
have to hope that they are not expecting me to go through all the
discovery that has been provided to test the bona fides of Mylan's
representation that everything the Blues want is already there. I only
have two years left in my term, and discovery ends in approximately one
I think, however, that there may a light at the end of the tunnel. I
have listened to the tape recording of the status conference recently
held before the Chief Judge and, as I understand the present situation,
the Blues recently examined the 40 boxes of documents that were at Hogan
& Hartson and will receive copies of the documents they designated. I
also understand that they will receive copies of two boxes of documents
currently in the possession of a law firm called DKW. It would appear,
then, that the Blues, having taken what they want from these 42 boxes, do
not need an index to their contents.
That leaves the CD-ROM's. Again, as I understand the situation, the
Blues are protesting that the information on them is not readable. But,
if it can be made readable and, more importantly, searchable by the
Blues, there is no need for an index of them. To the contrary, the Blues
can then search the documents on their own, regardless of any index
produced by Mylan. The glory of electronic information is not merely that
it saves space but that it permits the computer to search for words or
"strings" of text in seconds. The Blues can, for example, look for the
White Paper they insist exists by searching for the word "white" within a
certain number of words from the word "paper," thus replicating for
themselves the search done several years ago by a computer forensic
scientist. In this sense, the presence of the information on the
CD-ROM's is an opportunity for the Blues rather than a problem.
I have now decided to require the Blues to do what I had hoped the
parties would consider doing last October-ascertaining whether the
CD-ROM's can be rendered searchable by the Blues. I will not take any
action on this aspect of the Blues's motion to compel until they first
make the 23 CD-ROM's available to a company that specializes in computer
or electronic discovery to ascertain whether the information on the 23
CD-ROM's can be either read
and searched by a commercially available software or whether it can
be converted to a format that will render it capable of being read and
searched by commercially available software. The Blues will then have to
report to me within one week of the date of this opinion about what they
found, and we shall proceed from there. If, as I hope, the information on
the CD-ROM's can be rendered readable and searchable quickly and cheaply,
I expect that the problem of indexing the documents will be a non-issue.
If the cost is great, I will still consider having it done, but I will
hear from the parties as to whether the cost should be allocated or
Should any additional issues arise, I will resolve them following oral