UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF PENNSYLVANIA

ROBERT K. ALDERMAN, on behalf of 

himself and all others similarly situated, 

 Plaintiff, 

 v. 

MCNEIL-PPC, INC., 

 Defendant. 

Case No. 

CLASS ACTION COMPLAINT

 

JURY TRIAL DEMANDED

 

Plaintiff Robert K. Alderman, on behalf of himself and all others similarly 

situated, alleges the claims set forth herein. Plaintiffs claims as to himself and his own actions, 

as set forth in  12, are based upon his personal knowledge. All other allegations are based upon 

information and belief pursuant to the investigation of counsel. 

I.

JURISDICTION AND VENUE

 1. Plaintiff brings this class action under Section 16 of the Clayton Act for 

injunctive relief as well as reasonable attorneys fees and costs with respect to injuries sustained 

by Plaintiff and members of the Class arising from violations by Defendant of the federal 

antitrust laws, including Section 2 of the Sherman Act, 15 U.S.C.  2. 

 2. The Court has jurisdiction over this matter pursuant to 28 U.S.C.  1331. 

The Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C.  1367. 

 3. Venue is proper in this judicial district pursuant to 15 U.S.C.  22, 

28 U.S.C.  1391(b) and (c), and 28 U.S.C.  1407, in that Defendant does business in this 

judicial district. 

- 1 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 1 of 24
II.

NATURE OF ACTION

 4. This case is based upon Defendant McNeil-PPC, Inc.s (McNeil or 

Defendant) anti-competitive scheme to manipulate federal patent and drug regulation laws in 

order to extend patent protection for its Imodium Advanced product  the leading antidiarrheal/anti-flatulent drug sold. 

 5. Through repeated erroneous representations, failure to disclose relevant 

prior art, and overall persistence in prosecuting exceeding obvious inventions, McNeil 

deceived the U.S. Patent and Trademark Office (PTO) into issuing a series of patents for an 

anti-diarrheal/anti-flatulent pharmaceutical. McNeil-PPC, Inc. v. L. Perrigo Co., No. 01-1100, 

slip op. at 15 (E.D. Pa. June 25, 2002) (McNeil). 

 6. After receiving the patents and gaining exclusive Federal Drug 

Administration (FDA) approval, McNeil started marketing the anti-diarrheal/anti-flatulent 

drug under the name Imodium Advanced. McNeil has sold over a hundred million dollars of 

Imodium Advanced. 

 7. This Court called Defendants actions before the PTO a scheme for 

extending the life of a drug about to go off patent, and McNeil executed this scheme without the 

slightest regard for the intent and purposes of the patent laws. Indeed, McNeils sole motive 

was to compromise these statutes and constitutional protections for the sake of profits. McNeil, 

slip op. at 15. 

 8. On or about June 25, 2002, the Court declared relevant claims of 

McNeils patents for Imodium Advanced invalid for obviousness. 

 9. This class action is brought under federal and state antitrust laws, state 

consumer protection laws, and state common law seeking damages and declaratory and 

injunctive relief on behalf of Plaintiff Robert K. Alderman (Plaintiff) as representative of a 

proposed class of all persons, or assignees of such persons, who indirectly purchased Imodium

Advanced, other than for resale, from McNeil in the United States and its territories (the 

Class) during the period March 7, 2001 to present (the Class Period). 

- 2 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 2 of 24
 10. Plaintiff alleges Defendant has unlawfully extended its monopoly in the 

U.S. Imodium Advanced market by improperly filing a series of patents for discovery and 

invention already established by prior art in order to prevent generic manufacturers such as 

Perrigo Company (Perrigo) from entering the Imodium Advanced market. These patents 

include: U.S. Patent No. 5,248,505 (the 505 patent) issued on September 28, 1993; U.S. 

Patent No. 5,612,054 (the 054 patent) issued on March 18, 1997; U.S. Patent No. 5,679,376 

(the 376 patent) issued on October 21, 1997; and U.S. Patent No. 5,716,641 (the 641 

patent) issued on February 10, 1998. 

 11. As a direct and proximate result of Defendants unlawful conduct, 

consumers and third-party payors (End-Payors) throughout the United States have been denied 

the benefits of free and unrestrained competition in the Imodium Advanced market. More 

specifically, Plaintiff and members of the Class have been denied the opportunity to choose 

between the Imodium Advanced brand name product and a lower priced generic alternative that 

would have cost 30 to 40 percent less. 

 12. The laws governing pharmaceutical products are meant to balance the 

competing policy goals of providing new product innovators an economic return on their 

investments while also ensuring consumers access to additional and more affordable generic 

versions of brand-name products. Defendant has caused Plaintiff and members of the Class to 

sustain an injury to their business or property by thwarting the intention of the law governing 

pharmaceutical products in order to force these End-Payors to pay supracompetitive prices for 

Imodium Advanced. 

III.

PARTIES

 13. Plaintiff Robert K. Alderman (Plaintiff) is a resident of California. 

Mr. Alderman paid for Imodium Advanced in California during the class period other than for 

resale and was injured by the illegal conduct alleged herein. 

 14. Defendant McNeil-PPC, Inc. (McNeil or Defendant) is a New Jersey 

corporation with its principal place of business in Fort Washington, Pennsylvania. McNeil sells 

- 3 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 3 of 24
a range of over-the-counter and prescription pharmaceuticals, including Imodium Adanced. 

McNeil is a division of Johnson & Johnson. 

 15. Various persons, partnerships, sole proprietors, firms, corporations, and 

individuals not named as defendants in this lawsuit, the identities of which are presently 

unknown, may have participated as co-conspirators with Defendant in the offenses alleged in this 

complaint, and have performed acts and made statements in furtherance of the alleged 

conspiracy to monopolize. 

 16. The acts alleged in this Complaint to have been done by Defendant were 

authorized, ordered, and performed by its parents, officers, directors, agents, employees, 

representatives, or subsidiaries while engaged in the management, direction, control, or 

transaction of its business affairs. 

IV.

CLASS ALLEGATIONS

 17. Plaintiff brings this action on behalf of himself and the following Class of 

End-Payors: 

All persons and entities in the United States who, at any time from

March 7, 2001 to the present, purchased Imodium Advanced in 

the United States other than for resale. Excluded from the Class is 

the Defendant, its parents, subsidiaries, and affiliates, all 

government entities, all judges or justices assigned to hear any 

aspect of this litigation, and any person or entity that purchased 

Imodium Advanced directly from Defendant. 

 18. The Class is so numerous that joinder of all members is impracticable. 

While the exact size of the Class is unknown to Plaintiff at the present time, the members of the 

Class are believed to number in the thousands. 

 19. Common questions of law and fact exist as to all members of the Class. 

Among those questions are the following: 

 a. whether Defendant unlawfully monopolized the U.S. market for 

Imodium Advanced drug products; 

 b. whether Defendants conduct delayed the marketing of generic 

- 4 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 4 of 24
Imodium Advanced products in the United States from March 7, 2001 to the present; 

 c. whether Defendants unlawful conduct caused Plaintiff and the 

other Class members to pay more for Imodium Advanced drug products than they otherwise 

would have paid; 

 d. whether Defendants conduct, as alleged herein, violated the state 

antitrust and unfair trade practices laws set forth in Counts II and III herein; 

 e. whether Defendant has monopoly power in the relevant market for 

purposes of Plaintiffs monopolization claims; 

 f. whether Defendant unjustly enriched itself to the detriment of 

Imodium Advanced End-Payors, thereby entitling Plaintiff and the other Class members to 

disgorgement of all benefits derived therefrom;

 g. the appropriate measure of damages incurred by the Class; and 

 h. whether the Class is entitled to injunctive and other equitable 

relief.

 20. These and other questions of law and fact are common to the members of 

the Class and predominate over any questions affecting only individual members. 

 21. Plaintiffs claims are typical of the claims of the members of the Class 

because Plaintiff and all other Class members sustained damages in the same way, as a result of 

Defendants wrongful conduct complained of herein, and the claims of each Class member arise 

out of the same nucleus of operative facts and are based on the same legal theories. 

 22. Plaintiff will fairly and adequately protect the interest of the other Class 

members. Plaintiff has retained counsel who are experienced in class action and antitrust 

litigation, and Plaintiff has no interest in this litigation that is adverse to or in conflict with the 

interest of the other members of the Class. 

 23. A class action is superior to other available methods for the fair and 

efficient adjudication of this controversy. The damages suffered by many members of the Class 

are expected to be relatively small, so that the expense and burden of prosecuting an antitrust 

damages case such as this one will almost certainly preclude individual litigation by such 

- 5 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 5 of 24
members. Plaintiff knows of no difficulty that will be encountered in the management of this 

litigation that will preclude its maintenance as a class action. 

V.

INTERSTATE TRADE AND COMMERCE

 24. At all times relevant herein, Defendant manufactured, marketed, and sold 

substantial amounts of Imodium Advanced in a continuous and uninterrupted flow of interstate 

commerce. Defendant utilized the United States mails and interstate telephone lines as well as 

means of interstate travel in order to effectuate its scheme to monopolize the Imodium

Advanced market. The illegal monopolization and attempt to monopolize the market for 

Imodium Advanced has, therefore, substantially affected interstate and commerce. 

VI.

OPERATIVE FACTS

A. Federal Regulation of Prescription Drugs

1. New Drug Applications

 25. The statute regulating the manufacture and distribution of drugs and 

medical devices in the United States is the Federal Food, Drug and Cosmetic Act, 21 U.S.C. 

 301 et seq. (the FD&C Act). Under the FD&C Act, approval by the FDA, the governmental 

body charged with regulation of the pharmaceutical industry, is required before a company may 

begin selling a new drug in interstate commerce in the United States. 21 U.S.C.  355(a). Premarket approval for a new drug must be sought by filing a new drug application (NDA) with 

the FDA under  355(b) of the FD&C Act demonstrating that the drug is safe and effective for 

its intended use. 

 26. New drugs that are approved for sale in the United States by the FDA are 

typically covered by patents, which provide the patent owner with the right to exclude others 

from making, using or selling that new drug in the United States for the duration of the patents, 

plus any extension of the original patent period granted pursuant to the Drug Price Competition 

and Patent Term Restoration Act of 1984, 21 U.S.C.  355 (Hatch-Waxman Act). 

 27. Pursuant to 21 U.S.C.  355(b), in its NDA the pioneer drug manufacturer 

- 6 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 6 of 24
must list all patents that claim the drug for which FDA approval is being sought, or that claim a 

method of using the drug, and with respect to which a claim of patent infringement could 

reasonably be asserted against an unlicensed manufacturer or seller of the drug. 

 28. Once the NDA is approved, any claimed patents are listed with the NDA 

in a publication known as the Approved Drug Products With Therapeutic Equivalence 

Evaluations. This publication is commonly called the Orange Book.

 29. Pursuant to 21 U.S.C.  355(c)(2), if, after its NDA is approved, the 

pioneer drug manufacturer is issued a new patent that claims the drug or methods of its use, the 

company must supplement its NDA by listing such new patent within 30 days of issuance, 

whereupon the FDA publishes the new patent in a supplement to the Orange Book. The FDA is 

required to accept as true patent information it obtains from patent holders, such as whether a 

patent covers a particular drug product. If an unscrupulous patent holder is willing to provide 

false information to the FDA to delay the onset of generic competition, the FDA is powerless to 

stop it. 

2. Generic Drugs

 30. Generic drugs are drugs that the FDA has found to be bioequivalent to 

their corresponding brand-name drug. A generic drug provides the identical therapeutic benefits 

as its brand-name counterpart. 

 31. Generic drugs are invariably priced substantially below the branded drugs 

to which they are bioequivalent. Typically, the first generic drug is sold at a substantial discount 

to the brand name drug, followed by steeper discounts as more companies begin selling the 

generic. The beneficiaries of this competition are the patients and third-party payors who pay 

the retail price of drugs sold by pharmacies. 

 32. Virtually all third-party payors encourage patients to use generic drugs by, 

among other things, requiring lower co-payments from members who receive generics. 

 33. Moreover, if a lower-priced generic version of a brand-name drug exists, 

and the physician has not specifically indicated on the prescription dispense as written (or a 

similar instruction), and the consumer is covered by a typical third-party payor plan, the 

- 7 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 7 of 24
pharmacist will substitute, or at least offer to substitute, the generic drug. 

 34. The branded drug generally loses substantial sales to generics within a 

relatively short time, primarily as a result of cross-overs to lower-priced generics by patients, 

including patients in third-party payor plans. 

3. Abbreviated New Drug Applications (ANDAs) For Generic Drugs

 35. Under the Hatch-Waxman Act, a generic drug manufacturer may seek 

expedited FDA approval to market a generic version of a brand-name drug with an approved 

NDA by filing an Abbreviated New Drug Application (ANDA) pursuant to 21 U.S.C. 

 355(j). An ANDA relies on the safety and efficacy data already filed with the FDA by the 

manufacturer of the brand-name drug. 

 36. The Hatch-Waxman Act permits ANDA applicants to perform all 

necessary testing, submit an application for approval, and receive tentative approval before the 

relevant patents expire. Prior to the Hatch-Waxman Act, a generic applicant had to wait until all 

patents had expired prior to beginning the approval process or otherwise face an infringement 

suit. 

B. Defendants Illegal, Monopolistic Conduct

 37. Loperamide hydrochloride (loperamide) is a non-addictive opiate. It is 

used to treat diarrhea. Scientists and doctors believe loperamide treats diarrhea by regulating 

muscular contractions in the intestine, limiting secretions in the intestinal tract, and relieving 

abdominal discomfort. 

 38. Simethicone is an oily liquid substance used to treat flatulence associated 

with diarrhea. 

 39. The anti-diarreheal/anti-flatulent drug Imodium Advanced contains both 

loperamide and simethicone. Imodium Advanceds predecessor drug, Imodium A-D, contains 

the anti-diarreheal loperamide, but does not contain the anti-flatulent simethicone. 

 40. When first marketed and sold in 1988, a number of patents for loperamide 

(the loperamide patents) protected Imodium A-D from generic competition. Upon expiration 

of the loperamide patents, Imodium A-D faced intense competition from generic manufacturers 

- 8 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 8 of 24
that sold a generic version of Imodium A-D for approximately 30% to 40% less than the price 

McNeil charged. 

 41. Upon expiration of the loperamide patents in the late 1980s, generic 

manufacturer L. Perrigo Company (Perrigo) began marketing a generic brand of loperamide 

similar to that of Imodium A-D. 

 42. In response to the generic competition it faced for Imodium A-D, McNeil 

directed one its scientists, Dr. Jeffrey Garwin, to develop a new patent-protected form of 

loperamide. Pursuant to this directive, Dr. Garwin developed a drug that combined loperamide 

with the anti-flatulent simethicone. 

 43. Pursuant to McNeils scheme, Dr. Garwin filed patent applications with 

the PTO to claim the combination of loperamide and simethicone. During the course of the 

prosecution of the patents, McNeil represented to the PTO that Dr. Garwin had discovered the 

concurrence of diarrhea and flatulence; McNeil and Dr. Garwin thus claimed that the invention 

to be awarded patent protection lies not in the discovery of a novel solution to this problem, but 

in the discovery of the problem itself. McNeil, slip op. at 4. Based upon Defendants 

representations, the PTO award Dr. Garwin U.S. Patent No. 5,248,505 (the 505 patent) on 

September 28, 1993 and U.S. Patent No. 5,612,054 (the 054 patent) on March 18, 1997. 

 44. Subsequently, the PTO issued two additional patents for the combination 

of loperamide and simethicone, U.S. Patent No. 5,679,376 (the 376 patent) issued on 

October 21, 1997, and U.S. Patent No. 5,716,641 (the 641 patent) issued on February 10, 

1998. Since their issuance, the 505, 054, 376, and 641 patents all have been declared 

invalid. 

 45. Beginning in October, 1997, McNeil manufactured, marketed, and sold 

the drug combination of loperamide and simethicone under the brand name Imodium

Advanced. 

 46. Defendant marketed Imodium Advanced as a significant advancement 

over Imodium A-D, spending approximately $45 million to convince consumers to buy its drug. 

 Imodium Advanced had no generic competition. Imodium Advanceds sales skyrocketed in 

- 9 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 9 of 24
its first years on the market, and are projected to reach $200 million by the end of 2002. 

 47. Interest in a generic version of Imodium Advanced began almost 

immediately after McNeil introduced it. Pursuant to this interest, Perrigo consulted outside 

patent counsel as to whether Perrigos version of loperamide-simethicone would infringe the 

Imodium Advanced patents. Perrigos patent counsel concluded the proposed generic version 

of loperamide-simethicone would not infringe the Imodium Advanced patents because these 

patents were invalid. 

 48. On or about November 2000, Perrigo filed an ANDA seeking FDA 

approval to manufacture, market, and sell a generic version of Imodium Advanced in the 

United States. 

 49. Facing the threat of losing their exclusive loperamide-simethicone 

Combination Product Sales, Defendant filed suit against Perrigo, alleging patent infringement. 

On April 22, 2002, this Court began to hear testimony in the trial of McNeils patent 

infringement suit against Perrigo. On or about June 25, 2002, this Court invalidated claims 14 

and 16 of the 505 patent and claim 15 of the 054 patent for obviousness. 

 50. In examining Defendants representation made during the patent 

application to the PTO, this Court found the following: 

 a. With respect to Defendants representation that Dr. Garwin had 

discovered the concurrence of diarrhea and flatulence, this Court found that Defendant failed to 

bring to the PTOs attention the existence of more than twenty scientific and medical articles 

and publications that noted the concurrence of diarrhea and gas-related symptoms and were 

published before Dr. Garwin claimed to be the originator of the discovery. 

 b. With respect to Defendants representation to the PTO that Dr. 

Garwin was the first to combine an antidiarrheal with simethicone, the Court found that 

Defendant failed to bring to the PTO attention that: 

i. Since 1974 the FDA had approved of the use of 

simethicone in combination with other pharmaceuticals; 

ii. By the time of Dr. Garwins claimed invention, 

- 10 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 10 of 24
simethicone was a well-known and increasingly popular 

antiflatulent, sold commercially in more than twenty-five 

products; 

iii. The dosage regimen in the proposed patents to be issued to 

Dr. Garwin were not new. Other marketed over-thecounter products contained the same amount of 

simethicone as proposed by Dr. Garwin. Additionally, the 

amounts specified for loperamide by Dr. Garwin also were 

already used in several over-the-counter products; 

iv. At least as early as 1980, an Australian pharmaceutical 

reference publication included a reference to a product 

called Diareze which combined an antidiarrheal with 

simethicone; 

v. A patent existing at the time of Dr. Garwins proposal, the 

Chavkin patent, already covered the combination of an 

antidiarrheal with simethicone; and 

vi. Another existing patent at the time, French Patent 

Publication 2,565,107, also covered the combination of an 

antidiarrheal with simethicone; 

 51. Based on these facts, this Court invalidated the relevant claims in the 

patents for obviousness, finding that McNeil misled the PTO: 

During the course of the lengthy prosecution of the [505 and 

054] patents, McNeils attorneys made a number of erroneous 

representations. . . . First, McNeil incorrectly argued to the Patent 

and Trademark Office (PTO) that Dr. Garwin had discovered 

the concurrence of diarrhea and flatulence . . . . Dr. Garwin did not 

discover the concurrence of diarrhea and gas. Moreover, . . . 

McNeils attorneys failed to provide the Examiner with evidence 

that would have called into question McNeils assertion that Dr. 

Garwin had discovered the concurrence of diarrhea and 

flatulence. . . . Second, McNeils attorneys permitted the 

Examiner to believe mistakenly that Dr. Garwin was the first to 

combine an antidiarrheal with simethicone. 

- 11 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 11 of 24
McNeil, slip op. at 4-5. 

VII.

RELEVANT MARKET

 52. During the Class Period, the relevant market was the manufacture and sale 

of Imodium Advanced, and the geographic market was the United States and its territorities. 

51. During the Class Period, Defendants share of the relevant market was 

100%, and Defendant maintained monopoly power in the relevant market during that time 

period. 

VIII.

MARKET EFFECTS

 53. The acts and practices of Defendant, as herein alleged, had the purpose 

and effect of restraining competition unreasonably and injuring competition by preventing the 

entry of generic Imodium Advanced products into the relevant market. Defendants 

exclusionary conduct unlawfully protected Imodium Advanced from generic competition 

during the Class Period. 

 54. But for McNeils illegal conduct, Perrigo or another generic competitor 

would have begun marketing a generic version of Imodium Advanced as early as October 1997. 

 55. If Perrigo or another generic competitor had been able to enter the relevant 

market and compete with Defendant, End-Payors such as Plaintiff would have been free to 

substitute a lower-priced generic for the higher-priced brand name product. A generic product 

can quickly and efficiently enter the marketplace at substantial discounts, generally leading to a 

significant erosion of the branded drugs sales within the first year. 

 56. By preventing generic competitors from entering the market, Defendant 

injured Plaintiff and the other Class members in their business or property by causing them to 

pay more for Imodium Advanced products than they otherwise would have paid. Defendants 

unlawful conduct deprived Plaintiff and other End-Payors of the benefits of competition that the 

antitrust laws and applicable state consumer protection laws were designed to preserve. 

- 12 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 12 of 24
IX.

COUNT I

Claim For Injunctive Relief Under Section 16 Of The Clayton Act

 57. Plaintiff incorporates by reference the preceding allegations. 

 58. The conduct of the Defendant as alleged in this Complaint, the operation 

of an unlawful combination and conspiracy, violates the antitrust laws of the United States. 

 59. Defendant is presently engaged in illegal conduct to prevent the 

introduction into the U.S. marketplace of any generic version of Imodium Advanced. The 

illegal combination continues unabated. 

 60. It is in the public interest to enjoin the Defendant from continuing to be 

engaged in illegal conduct, to prevent the introduction into the U.S. marketplace of any generic 

version of Imodium Advanced. 

 61. The conduct has fixed, raised, maintained, and stabilized at artificially 

high and non-competitive levels the price of loperamide and simethicone purchased by the 

Plaintiff and the Class. 

 62. During the relevant period, members of the Class purchased substantial 

amounts of Imodium Advanced from McNeil. As a result of the illegal conduct of Defendant, 

members of the Class were compelled to pay, and did pay, substantially inflated prices for the 

loperamide and simethicone combination. Those prices were substantially greater than the 

prices that members of the Class would have paid absent the illegal conduct. Members of the 

Class have in consequence sustained substantial losses and damage to their business and 

property in the form of, among others, overcharges. 

 63. The Plaintiff and the Class will continue to be injured in their person and 

property by McNeils continuing conduct in violation of the antitrust laws of the United States. 

Injunctive relief is, therefore, appropriate under 15 U.S.C.  26. 

X.

COUNT II

Monopolization Under Federal Law

 64. Plaintiff incorporates by reference the preceding allegations. 

- 13 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 13 of 24
 65. Pursuant to U.S. patent laws, Defendant was given a lawful monopoly 

over sales of Imodium Advanced drug products, but that monopoly was only lawful so long as 

the drug, or a method of its use, was fully covered by valid, unexpired patents. 

 66. As described above, Defendant knowingly and willfully engaged in a 

course of conduct designed to extend their monopoly power. This course of conduct included, 

inter alia, improperly filing a series of patents that merely replicated prior art in order to prevent 

Perrigo other potential generic manufacturers, from selling a generic version of Imodium

Advanced. 

 67. During the Class Period, Defendant possessed monopoly power in the 

relevant market. 

 68. Defendant intentionally and wrongfully maintained its monopoly power in 

the relevant market in violation of Section 2 of the Sherman Act, 15 U.S.C.  2. 

 69. Plaintiff and members of the Class have been injured in their business or 

property by reason of Defendants antitrust violation. Their injury consists of paying higher 

prices for Imodium Advanced than they would have paid in the absence of that violation. Such 

injury is of the type antitrust laws were designed to prevent, and is the result of Defendants 

unlawful conduct. 

 70. Plaintiff and members of the Class are likely to purchase Imodium

Advanced again in the future. 

 71. Defendant intended to prevent generic manufacturers from entering the 

Imodium Advanced market by filing a series of patents replicating prior art. Now faced with 

judicial determination that the relevant claims of these patents are invalid, Defendant could 

continue to prevent any generic company from entering the market while an appeal is pending. 

Injunctive relief is, therefore, appropriate under 15 U.S.C.  26. 

 72. Plaintiff seeks to enjoin Defendant from engaging in future anticompetitive practices concerning the manufacture, distribution or sale of Imodium Advanced. 

Plaintiff does not seek damages under Counts I and II. 

 73. Plaintiffs and the Class have no adequate remedy at law. 

- 14 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 14 of 24
XI.

COUNT III

Monopolization Under State Law

 74. Plaintiff incorporates by reference the preceding allegations. 

 75. As described above, Defendant knowingly and willfully engaged in a 

course of conduct designed to extend its monopoly power. This course of conduct included, 

inter alia, improperly filing a series of patents that merely replicated prior art in order to prevent 

Perrigo and other potential generic manufacturers, from selling a generic version of Imodium

Advanced. 

 76. During the Class Period, Defendant possessed monopoly power in the 

relevant market. 

 77. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of Arizona Revised Stat.  44-1401, et seq., with 

respect to purchases of Imodium Advanced in Arizona by members of the Class. 

 78. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of Cal. Bus. & Prof. Code  16700, et seq., with 

respect to purchases of Imodium Advanced in California by members of the Class. 

 79. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of D.C. Code Ann.  28-45031, et seq., with respect to 

purchases of Imodium Advanced in the District of Columbia by members of the Class. 

 80. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of Fla. Stat.  501. Part II, et seq., with respect to 

purchases of Imodium Advanced in Florida by members of the Class. 

 81. Defendants has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of Kan. Stat. Ann.  50-101, et seq., with respect to 

purchases of Imodium Advanced in Kansas by members of the Class. 

 82. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of La. Rev. Stat.  51:137, et seq., with respect to 

purchases of Imodium Advanced in Louisiana by members of the Class. 

- 15 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 15 of 24
 83. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of Me. Rev. Stat. Ann. 10,  1101, et seq., with respect 

to purchases of Imodium Advanced in Maine by members of the Class. 

 84. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of Mass. Ann. Laws ch. 93A, et seq., with respect to 

purchases of Imodium Advanced in Massachusetts by members of the Class. 

 85. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of Mich.Comp.Laws Ann.  445.771, et seq., with 

respect to purchases of Imodium Advanced in Michigan by members of the Class. 

 86. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of Minn. Stat.  325D.52, et seq. with respect to 

purchases of Imodium Advanced in Minnesota by members of the Class. 

 87. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of Miss. Code Ann.  75-21-1, et seq., with respect to 

purchases of Imodium Advanced in Mississippi by members of the Class. 

 88. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of Nev. Rev. Stat. Ann.  598A., et seq., with respect to 

purchases of Imodium Advanced in Nevada by members of the Class. 

 89. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. 

 56:8-1 et seq., with respect to purchases of Imodium Advanced in New Jersey by members 

of the Class. 

 90. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of N.M. Stat. Ann.  57-1-1 et seq., with respect to 

purchases of Imodium Advanced in New Mexico by members of the Class. 

 91. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of New York General Business Law  340, et seq., with 

respect to purchases of Imodium Advanced in New York by members of the Class. 

- 16 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 16 of 24
 92. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of N.C. Gen. Stat.  75-1, et seq., with respect to 

purchases of Imodium Advanced in North Carolina by members of the Class. 

 93. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of N.D. Cent. Code  51-08.1-01, et seq., with respect 

to purchases of Imodium Advanced in North Dakota by members of the Class. 

 94. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of S.D. Codified Laws Ann.  37-1, et seq., with 

respect to purchases of Imodium Advanced in South Dakota by members of the Class. 

 95. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of Tenn. Code Ann.  47-25-101, et seq., with respect 

to purchases of Imodium Advanced in Tennessee by members of the Class. 

 96. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of Vt. Stat. Ann. 9,  2453, et seq., with respect to 

purchases of Imodium Advanced in Vermont by members of the Class. 

 97. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of W.Va. Code  47-18-1, et seq., with respect to 

purchases of Imodium Advanced in West Virginia by members of the Class. 

 98. Defendant has intentionally and wrongfully maintained its monopoly 

power in the relevant market in violation of Wis. Stat.  133.01, et seq., with respect to 

purchases of Imodium Advanced in Wisconsin by members of the Class. 

 99. Plaintiff and members of the Class have been injured in their business or 

property by reason of Defendants antitrust violations alleged in this Count. Their injury 

consists of paying higher prices for Imodium Advanced-based drug products than they would 

have paid in the absence of those violations. This injury is of the type the antitrust and consumer 

protection laws of the above States and the District of Columbia were designed to prevent and 

flows from that which makes Defendants conduct unlawful. 

- 17 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 17 of 24
XII.

COUNT IV

Unfair and Deceptive Trade Practices Under State Law

 100. Plaintiff incorporates by reference the preceding allegations. 

 101. Defendant engaged in unfair competition or unfair, unconscionable, 

deceptive or fraudulent acts or practices in violation of the state consumer protection statutes 

listed in  102-146 when they obtained invalid patents in order to prevent Perrigo and other 

would-be competitors from marketing a generic version of Imodium Advanced. As a direct 

result of Defendants anticompetitive, deceptive, unfair, unconscionable, and fraudulent 

conduct, Plaintiff and members of the Class were deprived of the opportunity to purchase generic 

Imodium Advanced. 

 102. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Alaska Stat.  45.50.471, et seq. 

 103. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Ariz. Rev. Stat.  44-1522, et seq. 

 104. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Ark. Code  4-88-101, et seq. 

 105. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Cal. Bus. & Prof. Code  17200, et seq. 

 106. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices or has made false representations in violation of Colo. Rev. Stat.  6-1-105, et seq. 

 107. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Conn. Gen. Stat.  42-110b, et seq. 

 108. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of 6 Del. Code  2511, et seq. 

 109. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices or made false representations in violation of D.C. Code  28-3901, et seq. 

 110. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Fla. Stat.  501.201, et seq. 

- 18 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 18 of 24
 111. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Ga. Stat. 10-1-392, et seq. 

 112. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Haw. Rev. Stat.  480, et seq. 

 113. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Idaho Code  48-601, et seq. 

 114. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of 815 ILCS  505/1, et seq. 

 115. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Kan. Stat.  50-623, et seq. 

 116. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Ky. Rev. Stat.  367.110, et seq. 

 117. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of La. Rev. Stat.  51:1401, et seq. 

 118. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of 5 Me. Rev. Stat.  207, et seq. 

 119. Defendants has engaged in unfair competition or unfair or deceptive acts 

or practices in violation of Md. Com. Law Code  13-101, et seq. 

 120. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Mass. Gen. L. Ch. 93A, et seq. 

 121. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Mich. Stat.  445.901, et seq. 

 122. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Minn. Stat.  8.31, et seq. 

 123. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Vernons Missouri Stat.  407.010, et seq. 

 124. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Mont. Code  30-14-101, et seq. 

- 19 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 19 of 24
 125. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Neb. Rev. Stat.  59-1601, et seq. 

 126. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Nev. Rev. Stat.  598.0903, et seq. 

 127. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of N.H. Rev. Stat.  358-A:1, et seq. 

 128. Defendant has engaged in unfair competition or unfair, unconscionable or 

deceptive acts or practices in violation of N.J. Rev. Stat.  56:8-1, et seq. 

 129. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of N.M. Stat.  57-12-1, et seq. 

 130. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of N.Y. Gen. Bus. Law  349 et seq. 

 131. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of N.C. Gen. Stat.  75-1.1, et seq. 

 132. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of N.D. Cent. Code  51-15-01, et seq. 

 133. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Ohio Rev. Stat.  1345.01, et seq. 

 134. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices or made false representations in violation of Okla. Stat. 15  751, et seq. 

 135. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Or. Rev. Stat.  646.605, et seq. 

 136. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of 73 Pa. Stat.  201-1, et seq. 

 137. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of R.I. Gen. Laws.  6-13.1-1, et seq. 

 138. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of S.C. Code Laws  39-5-10, et seq. 

- 20 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 20 of 24
 139. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of S.D. code Laws  37-24-1, et seq. 

 140. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Tenn. Code  47-18-101, et seq. 

 141. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Tex. Bus. & Com. Code  17.41, et seq. 

 142. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Utah Code.  13-11-1, et seq. 

 143. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of 9 Vt.  2451, et seq. 

 144. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Va. Code  59.1-196, et seq. 

 145. Defendant has engaged in unfair competition or unfair, deceptive or 

fraudulent acts or practices in violation of Wash. Rev. Code.  19.86.010, et seq. 

 146. Defendant has engaged in unfair competition or unfair or deceptive acts or 

practices in violation of West Virginia Code  46A-6-101, et seq. 

 147. Plaintiff and members of the class have been injured in their business and 

property by reason of Defendants anticompetitive, unfair, or deceptive acts alleged in this 

Count. Their injury consists of paying higher prices for Imodium Advanced-based prescription 

drug products than they would have paid in the absence of these violations. This injury is of the 

type the state consumer protection statutes were designed to prevent and directly results from

Defendants unlawful conduct. 

XIII.

COUNT V

Unjust Enrichment Under State Law

 148. Plaintiff incorporates by reference the preceding allegations. 

 149. Defendant has benefitted from its unlawful acts through the overpayments 

for Imodium Advanced products by Plaintiff and other Class members and the increased profits 

resulting from such overpayments. It would be inequitable for Defendant to be permitted to 

- 21 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 21 of 24
retain the benefit of these overpayments, that were conferred by Plaintiff and retained by 

Defendant. 

 150. Plaintiff and members of the Class are entitled to the establishment of a 

constructive trust consisting of the benefit to Defendant of such overpayments, from which 

Plaintiff and the other Class members may make claims on a pro-rata basis for restitution. 

 PRAYER FOR RELIEF

 WHEREFORE, Plaintiff prays for judgment against Defendant for the following 

relief:

A. A declaration that Defendant has committed the violations alleged herein; 

B. A judgment for the damages sustained by Plaintiff and the Class defined 

herein, and for any additional damages, penalties and other monetary relief provided by 

applicable law, including treble damages; 

 C. Disgorgement of Defendants unjust enrichment; 

D. An injunction preventing Defendant from engaging in future 

anticompetitive practices concerning the manufacture, distribution or sale of Imodium

Advanced; 

E. The costs of this suit, including a reasonable attorneys fee; and 

F. Such other and further relief as the Court deems just and proper. 

Dated: July __, 2002 By: 

Natalie A. Finkelman 

 

SHEPHERD & FINKELMAN, LLC 

117 Gayley Street, Suite 200 

Media, PA 19063 

Telephone: (610) 891-9880 

Facsimile: (610 ) 891-9883 

- 22 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 22 of 24
Joseph R. Saveri 

Eric B. Fastiff

LIEFF, CABRASER, HEIMANN & 

 BERNSTEIN, LLP 

275 Battery Street, 30th Floor 

San Francisco, CA 94111-3339 

Telephone: (415) 956-1000 

Facsimile: (415) 956-1008 

Robert G. Eisler 

LIEFF, CABRASER, HEIMANN & 

 BERNSTEIN, LLP 

780 Third Avenue, 48th Floor 

New York, NY 10017-2024 

Telephone: (212) 355-9500 

Facsimile: (212) 355-9592 

Attorneys for Plaintiff

Robert K. Alderman 

 JURY DEMAND

Plaintiff demands a trial by jury of all issues so triable. 

 

- 23 - 

S:\WordProc\imo\001_IMO.doc 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 23 of 24
- 24 - 

S:\WordProc\imo\001_IMO.doc 

Dated: July __, 2002 

Media, Pennsylvania 

By: 

 Natalie A. Finkelman 

 

SHEPHERD & FINKELMAN, LLC 

117 Gayley Street, Suite 200 

Media, PA 19063 

Telephone: (610) 891-9880 

Facsimile: (610 ) 891-9883 

Joseph R. Saveri 

Eric B. Fastiff 

LIEFF, CABRASER, HEIMANN & 

 BERNSTEIN, LLP 

275 Battery Street, 30th Floor 

San Francisco, CA 94111-3339 

Telephone: (415) 956-1000 

Facsimile: (415) 956-1008 

Robert G. Eisler 

LIEFF, CABRASER, HEIMANN & 

 BERNSTEIN, LLP 

780 Third Avenue, 48th Floor 

New York, NY 10017-2024 

Telephone: (212) 355-9500 

Facsimile: (212) 355-9592 

Attorneys for Plaintiff 

Robert K. Alderman 

Case 2:02-cv-04180-MK Document 1 Filed 06/27/2002 Page 24 of 24