UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF PENNSYLVANIA 

SHEET METAL WORKERS LOCAL 441 

HEALTH & WELFARE PLAN; MC - UA 

LOCAL 119 HEALTH AND WELFARE 

PLAN; A.F. OF L. - A.G.C. BUILDING 

TRADES WELFARE PLAN; IBEW - NECA 

LOCAL 505 HEALTH & WELFARE PLAN; 

UNITED FOOD AND COMMERCIAL 

WORKERS UNIONS AND EMPLOYERS 

MIDWEST HEALTH BENEFITS FUND; 

SIDNEY HILLMAN HEALTH CENTER OF 

ROCHESTER, INC.; EILEEN JACOBS; 

LARA KECK; MATTHEW ANDRE; and 

HEALTH CARE FOR ALL, INC., on behalf 

of themselves and all others similarly situated, 

Plaintiffs, 

v. 

GLAXOSMITHKLINE, plc; and 

SMITHKLINE BEECHAM 

CORPORATION, 

Defendants. 

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Civil Action No.: 

CLASS ACTION COMPLAINT

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TABLE OF CONTENTS

Page 

INTRODUCTION ...........................................................................................................................1 

THE PARTIES.................................................................................................................................3 

Third-Party Payor Plaintiffs.................................................................................................3 

Consumer Plaintiffs .............................................................................................................4 

Public Interest Organization Plaintiffs.................................................................................5 

Defendants ...........................................................................................................................5 

JURISDICTION AND VENUE ......................................................................................................6 

CLASS ACTION ALLEGATIONS ................................................................................................6 

FACTUAL ALLEGATIONS ..........................................................................................................8 

A. The Federal Scheme For Approval Of Pioneer Drugs.............................................8 

B. Generic Drug Entry..................................................................................................9 

C. Abbreviated New Drug Applications For Generic Drugs......................................11 

D. The Development of Wellbutrin SR And Zyban ...................................................13 

(i) The 1993 Sustained Released HPMC Patent Application .........................13 

(ii) Prosecution of the 1993 SR Application....................................................14 

(iii) Issuance of the ’798 Patent ........................................................................15 

(iv) Wellbutrin SR and Zyban Go To Market ..................................................16 

E. Unlawfully Supressed Generic Competition For Wellbutrin and Zyban...............17 

(i) ANDAs Submitted For Approval to Market Generic Versions of 

 Wellbutrin SR and Zyban and the Patent Infringement Actions...............17

(ii) The Infringement Actions and the Watson Litigation ...............................18 

(iii) The Eon ANDA and Patent Litigation.......................................................19 

(iv) The IMPAX ANDA and Patent Litigation ................................................20 

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(v) The Excel ANDA and Patent Litigation ....................................................22 

F. The Elimination of Competition in the Sustain Released Buproprion 

Hydrochloride Market............................................................................................23 

INTERSTATE TRADE AND COMMERCE ...............................................................................26 

RELEVANT MARKET.................................................................................................................27 

COUNT ONE For Declaratory and Injunctive Relief Under Section 16 of the 

Clayton Act For Violations of Section 2 of the Sherman Act...........................................27 

COUNT TWO For Monopolization Under State Law......................................................29 

COUNT THREE For Unfair and Deceptive Trade Practices Under State Law................32 

COUNT FOUR Unjust Enrichment ..................................................................................37 

PRAYER FOR RELIEF ................................................................................................................38 

JURY TRIAL DEMAND ..............................................................................................................39 

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Plaintiffs identified in paragraphs 7-16 herein (“Plaintiffs”), on behalf of themselves and 

all others similarly situated, hereby seek damages, other monetary relief and equitable relief for 

Defendants’ violations of federal and state antitrust laws, state consumer protection laws and 

state common law principles of unjust enrichment. Plaintiffs allege, upon knowledge as to 

themselves and their own acts, and upon information and belief as to all other matters, as 

follows: 

INTRODUCTION

1. This litigation arises from a series of actions undertaken by Defendants 

GlaxoSmithKline plc, and SmithKline Beecham Corporation to unlawfully maintain their 

monopoly on Wellbutrin SRR (“Wellbutrin SR”) and/or Zyban®. Faced with the threat of losing 

market exclusivity, Defendants engaged in a series of anticompetitive, and unlawful actions that 

ultimately extended exclusivity on the sale of Wellbutrin SR and Zyban. 

2. Wellbutrin SR is a sustained release antidepressant drug used to treat depression. 

The active ingredient in Wellbutrin SR is bupropion.1

 Zyban, which has the same chemical 

composition as Wellbutrin SR, is marketed and sold by Glaxo for the cessation of smoking. For 

the 12 months ending June 30, 2002, domestic sales of Wellbutrin SR generated revenues in 

excess of $1.3 billion. Domestic sales of Zyban were $83 million during the same period. 

3. At least five manufacturers of generic drugs, including Eon Labs Manufacturing 

(“Eon”), Andrx Pharmaceuticals (“Andrx”), Watson Pharmaceuticals (“Watson”), IMPAX 

Laboratories (“IMPAX”), and Excel Pharmaceuticals (“Excel”) filed applications with the FDA 

 

1

 Wellbutrin and Zyban are the same medication and are covered by the same patent, but, 

as stated above, are marketed for different indications -- antidepression and smoking cessation, 

respectively. Accordingly, generic pharmaceutical manufacturers seeking to sell generic 

versions of sustained release bupropion for treatment of depression also seek approval to sell 

generic versions of Zyban.

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requesting approval to market generic versions of Wellbutrin SR and/or Zyban. In their 

applications, the manufacturers assert that their products are “bioequivalent” to Wellbutrin SR 

and Zyban and do not infringe any patent owned by or licensed to Defendants. Because of 

Defendants’ actions, however, certain of these generic formulations were unlawfully delayed 

from coming to market. 

4. Defendants unlawfully extended their monopoly in the United States Wellbutrin 

SR/Zyban markets by filing baseless patent infringement actions against manufacturers seeking 

to market generic versions of Wellbutrin SR and/or Zyban. As a result of their unlawful acts, 

Defendants have: (i) unreasonably restrained, suppressed and eliminated competition in the 

Wellbutrin SR and Zyban markets; and (ii) illegally maintained a monopoly in the Wellbutrin SR 

and Zyban markets. Plaintiffs bring their claims on behalf of all indirect purchasers of 

Wellbutrin SR and/or Zyban, i.e. consumers and third-party payors, the last persons and entities 

in the chain of distribution, who purchased these prescription drugs other than for resale from 

July 1, 2001 to the present (the “Class Period”). 

5. Defendants’ conduct has had far-ranging impact on consumers and third-party 

payors across the United States. The laws governing approval and marketing of pharmaceutical 

products are meant to balance the competing policy goals of providing new drug innovators an 

economic return on their investments while also ensuring consumers access to additional and 

more affordable generic versions of brand-name drugs. By engaging in anticompetitive conduct 

to prevent generic entry, Defendants effectively forced consumers to continue paying monopoly 

prices for Wellbutrin SR and/or Zyban prescription products. 

6. As a direct and proximate result of Defendants’ unlawful conduct, consumers and 

third-party payors throughout the United States have been denied the benefits of free and 

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unrestrained competition in the Wellbutrin SR and Zyban markets. Specifically, purchasers have 

been denied the opportunity to choose between the Wellbutrin SR and Zyban brand name 

prescription products and generic versions of these medications which would have been priced 

well below Wellbutrin SR and/or Zyban. 

THE PARTIES

Third-Party Payor Plaintiffs

7. Plaintiff Sheet Metal Workers Local 441 Health & Welfare Plan (the “Sheet 

Metal Workers Plan”) is a welfare benefit plan with its principal place of business in Mobile, 

Alabama. The Sheet Metal Workers Plan represents participants who have family coverage and 

purchased or paid for Wellbutrin SR and Zyban. During the Class Period, the Sheet Metal 

Workers Plan and its members were indirect purchasers of Wellbutrin SR and/or Zyban and were 

injured by Defendants’ unlawful conduct as alleged. 

8. Plaintiff MC - UA Local 119 Health and Welfare Plan (the “UA Plan”) is a 

welfare benefit plan with its principal place of business in Mobile, Alabama. The UA Plan 

represents participants who have family coverage and purchased or paid for Wellbutrin SR and 

Zyban. During the Class Period, the UA Plan and its members were indirect purchasers of 

Wellbutrin SR and/or Zyban and were injured by Defendants’ unlawful conduct as alleged 

herein. 

9. Plaintiff A.F. of L. - A.G.C. Building Trades Welfare Plan (the “AFL Plan”) is a 

welfare benefit plan with its principal place of business in Mobile, Alabama. The AFL Plan 

represents participants who have family coverage and purchased or paid for Wellbutrin SR and 

Zyban. During the Class Period, the AFL Plan and its members were indirect purchasers of 

Wellbutrin SR and/or Zyban and were injured by Defendants’ unlawful conduct as alleged. 

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10. Plaintiff IBEW - NECA Local 505 Health & Welfare Plan (the “IBEW Plan”) is a 

welfare benefit plan with its principal place of business in Mobile, Alabama. The IBEW Plan 

represents participants who have family coverage and purchased or paid for Wellbutrin SR 

and/or Zyban. During the Class Period, the IBEW Plan and its members were indirect 

purchasers of Wellbutrin SR and/or Zyban and were injured by Defendants’ unlawful conduct as 

alleged. 

11. Plaintiff United Food and Commercial Workers Unions and Employers Midwest 

Health Benefits Fund (“UFCW”) is an “employee welfare benefit plan” and “employee benefit 

plan.” UFCW’s office from which it pays medical benefits, including benefits for prescription 

drugs, is located in Cook County, Illinois. During the Class Period, the UFCW Plan and its 

members were indirect purchasers of Wellbutrin SR and/or Zyban and were injured by 

Defendants’ unlawful conduct as alleged. 

12. Plaintiff Sidney Hillman Health Center of Rochester, Inc., is a multi-employer 

employee welfare benefit plan. During the Class Period, the Sidney Hillman Health Center was 

an indirect purchaser of Wellbutrin SR and/or Zyban and was injured by Defendants’ unlawful 

conduct as alleged herein. 

Consumer Plaintiffs

13. Plaintiff Eileen Jacobs purchased Wellbutrin SR and/or Zyban during the Class 

Period and, like the other members of the Class, paid more than she would have absent 

Defendants’ unlawful monopolization and attempts to restrict generic access for Wellbutrin SR 

and/or Zyban. 

14. Plaintiff Lara Keck purchased Wellbutrin SR and/or Zyban during the Class 

Period and, like the other members of the Class, paid more than she would have absent 

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Defendants’ unlawful monopolization and attempts to restrict generic access for Wellbutrin SR 

and/or Zyban. 

15. Plaintiff Matthew Andre purchased Wellbutrin SR and/or Zyban during the Class 

Period and, like the other members of the Class, paid more than he would have absent 

Defendants’ unlawful monopolization and attempts to restrict generic access for Wellbutrin SR 

and/or Zyban. 

Public Interest Organization Plaintiffs

16. Plaintiff Health Care For All, Inc. (“HCFA”) is a Massachusetts private non-profit 

membership corporation organized under Chapter 180 of the Massachusetts laws with its 

principal place of business in Boston, Massachusetts. Founded in 1985, HCFA represents about 

1,200 dues paying members, and seeks healthcare reform through policy analysis, information 

referral, advocacy, community organization and public education. Certain HCFA members 

purchased Wellbutrin SR and/or Zyban other than for resale and were injured by the illegal 

conduct alleged herein. 

Defendants

17. GlaxoSmithKline plc is a United Kingdom corporation with its principal offices 

located at Glaxo Wellcome House, Berkeley Avenue, Grenford, Middlesex, UB6 0NN, United 

Kingdom. GlaxoSmithKline was formed following the December 2000 merger of Glaxo 

Wellcome and SmithKline Beecham. 

18. SmithKline Beecham Corporation is a Pennsylvania Corporation with its principal 

offices located at One Franklin Plaza, Philadelphia, Pennsylvania. SmithKline Beecham also 

conducts business in the name of GlaxoSmithKline Inc. and is a subsidiary of GlaxoSmithKline 

plc (GlaxoSmithKline plc and SmithKline Beecham Corp. d/b/a GlaxoSmithKline Inc. are 

referred to collectively as “Glaxo”). 

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JURISDICTION AND VENUE

19. This action is brought under Section 16 of the Clayton Act, 15 U.S.C. § 26, for 

injunctive relief, and the costs of suit, including reasonable attorneys’ fees, for injuries to 

Plaintiffs and members of the class resulting from, inter alia, Defendants’ violations of the 

federal antitrust laws. The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, 

1337, 1338(b) and 15 U.S.C. § 26. This Court has supplemental jurisdiction over the state law 

claims pursuant to 28 U.S.C. § 1367(a). 

20. Venue is proper in this judicial district pursuant to 15 U.S.C. § 22, and 28 U.S.C. 

§ 1391(b) because Defendants reside, transact business, are found, and/or have agents in this 

district, and because a substantial portion of the affected trade and commerce described below 

has been carried out in this district. 

CLASS ACTION ALLEGATIONS

21. Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil 

Procedure, specifically Rules 23(b)(2) and 23(b)(3), on behalf of the following class (the 

“Class”): 

All persons and entities in the United States who, at any time from July 1, 2001 to 

the present purchased Wellbutrin SR, Zyban and/or their generic equivalents in 

the United States for purposes other than resale. Excluded from the Class are the 

Defendants, their subsidiaries and affiliates, government entities and any person 

or entity that purchased Wellbutrin SR and/or Zyban directly from Defendants. 

For purposes of the Class definition, persons and entities “purchased” Wellbutrin 

SR and/or Zyban if they paid some or all of the purchase price. 

22. Plaintiffs believe, and therefore aver, that there are thousands of members in the 

above-described class; their exact number and identities being currently unknown to Plaintiffs, 

but known to Defendants and/or ascertainable from appropriate discovery. 

23. Among the questions of law and fact common to the Class are: 

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(a) Whether Defendants have unlawfully monopolized or attempted to 

monopolize the market for Wellbutrin SR and/or Zyban; 

(b) Whether Defendants possessed and/or unlawfully extended their 

monopoly power over the market for Wellbutrin SR and/or Zyban; 

(c) Whether Defendants, through their monopolization and/or attempted 

monopolization, have caused the prices of Wellbutrin SR and/or Zyban to 

be maintained at supracompetitive levels; 

(d) Whether Defendants’ patent infringement lawsuits against Eon and 

IMPAX to prevent them from entering the market with a lower priced 

therapeutically equivalent version of Wellbutrin SR and/or Zyban 

constitutes unlawful conduct; 

(e) Whether the Class suffered antitrust injury; and 

(f) Whether Defendants were unjustly enriched to the detriment of the Class, 

entitling Plaintiffs and the Class to disgorgement of all monies resulting 

therefrom. 

24. Plaintiffs’ claims are typical of the Class because Plaintiffs and all members of 

the Class were injured in the same manner by Defendants’ unlawful, anticompetitive and 

inequitable methods, acts and practices, and wrongful conduct complained of herein, i.e., they 

have paid supra-competitive and artificially high prices for Wellbutrin SR and/or Zyban. 

25. Plaintiffs will fully and adequately protect the interests of all members of the 

Class. Plaintiffs have retained counsel who are experienced in antitrust class action litigation. 

Plaintiffs have no interests which are adverse to, or in conflict with, other members of the Class. 

26. The questions of law and fact common to the members of the Class predominate 

over any questions which may affect only individual members. 

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

adjudication of this controversy. The Class is readily definable and prosecution as a class action 

will eliminate the possibility of duplicative litigation, while also providing redress for claims 

which would otherwise be too small to support the expense of individual, complex litigation. 

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28. Defendants have acted or refused to act, as alleged herein, on grounds generally 

applicable to the Class, thereby making appropriate final injunctive relief and/or corresponding 

declaratory relief with respect to the Class as a whole.

FACTUAL ALLEGATIONS

29. The manufacture, marketing, distribution and sale of prescription drugs is one of 

the most profitable industries in the United States. In 2001, sales of prescription drugs dispensed 

in the United Sates were approximately $153 billion. 

30. In recent years, sales of Wellbutrin SR and Zyban have generated billions in 

revenues for Defendants most of which was unlawfully obtained by Defendants’ unlawful 

suppression of generic equivalents. 

A. The Federal Scheme For Approval Of Pioneer Drugs

31. Under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq. (the 

Act”), approval by the FDA is required before a company may begin selling a new drug. Premarket approval for a new drug, often referred to as a “pioneer” or “branded” drug, must be 

sought by filing a New Drug Application (“NDA”) with the FDA demonstrating that the drug is 

safe and effective for its intended use. New drugs that are approved for sale in the United States 

by the FDA are typically (but not necessarily) covered by patents, which provide the patent 

owner with the exclusive right to sell that new or pioneer drug in the United States for the 

duration of the patents involved, plus any extension of the original patent period (the “FDA 

Exclusivity Period”) granted pursuant to the Drug Price Competition and Patent Term 

Restoration Act of 1984, 98 Stat. 1585, codified at 21 U.S.C. § 355(j) (the “Hatch-Waxman 

Act”) and 35 U.S.C. § 271(e). 

32. In addition to information on safety and efficacy, NDA applicants must submit to 

the FDA a list of all patents that claim the drug for which FDA approval is being sought, or that 

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

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

33. Once the NDA is approved, the FDA lists any patents referenced as part of the 

NDA application process in the Approved Drug Products with Therapeutic Equivalence 

Evaluations (commonly referred to as the “Orange Book”), where it can be easily found and 

consulted by future FDA applicants. 

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

manufacturer obtains a new patent that claims the drug or methods of its use, the company must 

supplement its NDA by submitting information on the new patent within 30 days of issuance. 

The FDA then lists the new patent in a supplement to the Orange Book. The FDA is required to 

accept as true the patent information it obtains from patent holders, and to withhold its approval 

of a subsequent drug application, whenever the patent holder presents a litigated dispute 

(baseless or not) regarding the validity or infringement of the patent. If an unscrupulous patent 

holder provides false information to the FDA or files frivolous patent infringement actions to 

delay the onset of generic competition, the FDA is powerless to stop it. 

35. Once the safety and effectiveness of a new drug is approved by the FDA, it may 

be used in the United States only under the direction and care of a physician who writes a 

prescription, specifying the drug by name, which must be dispensed by a licensed pharmacist. 

The pharmacist must, in turn, fill the prescription with the drug brand specified by the physician, 

unless an AB-rated generic version of that pioneer drug that has been approved by the FDA is 

available. 

B. Generic Drug Entry

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

name drugs, i.e., generic drugs have the same active chemical composition and provide the same 

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therapeutic effects as the pioneer, brand-name drugs. Where a generic drug is completely 

equivalent to a pioneer or brand-name drug, the FDA assigns the generic drug an “AB” rating. 

37. Generic drugs are invariably priced below the branded drugs to which they are 

bioequivalent. The first generic competitor to enter a market typically does so at a price at least 

30% lower than the price of the equivalent brand-name drug and quickly takes a substantial 

amount of market share away from the brand-name manufacturer. As additional generic 

competitors come to market, the price of the generic equivalents continues to fall, and their 

combined market share continues to grow. In some cases, generic competitors sell products 

equivalent to brand-name prescription drugs for as little as 15% of the price of the brand-name 

drug, and have captured as much as 90% of the brand-name drug’s pre-generic sales. Unless the 

branded manufacturer lowers prices to meet competition, a branded drug loses a significant 

portion of its market share to generic competitors less than a year after the introduction of 

generic competition. 

38. If a generic version of a brand-name drug exists and the physician has not 

specifically indicated on the prescription “DAW” or “dispense as written” (or similar indications, 

the wording of which varies slightly from state to state), then: (a) for consumers covered by 

most insurance plans, the pharmacist will substitute the generic drug; and (b) for consumers 

whose purchases are not covered by insurance plans, the pharmacist will offer the consumer the 

choice of purchasing either the branded drug, or the AB-rated generic at a lower price. 

39. Once a physician writes a prescription for a brand-name drug such as Wellbutrin, 

that prescription defines and limits the market to the drug named or its AB-rated generic 

equivalent. Only drugs that carry the FDA’s AB generic rating may be substituted by a 

pharmacist for a physician’s prescription for a brand-name drug. 

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40. The price competition engendered by generic drug manufacturers benefits all 

purchasers of the drug, who are able to buy the same chemical substance at much lower prices. 

Many health insurance companies and employee benefit plans encourage or require substitution 

of generic drugs for brand-name drugs in order to lower health care costs. Retail pharmacies 

routinely substitute generic drugs for brand-name drugs whenever possible in order to lower their 

own costs and the costs of their customers. 

C. Abbreviated New Drug Applications For Generic Drugs

41. Congress enacted the Hatch-Waxman Act in 1984 to establish an abbreviated 

process to expedite and facilitate the development, approval and marketing of generic drugs. To 

effectuate its purpose, the Hatch-Waxman Act permits a generic drug manufacturer to file an 

“abbreviated” new drug application (“ANDA”), which incorporates by reference the safety and 

effectiveness data developed and previously submitted to the FDA by the company that 

manufactured the original, “pioneer” drug. The Act also provides an economic incentive to the 

manufacturer of the first generic drug to file an ANDA for a particular generic drug – i.e., a 180-

day statutory period of market exclusivity, during which time the manufacturer has the right to 

market its drug free from other generic competition. 

42. The most important new information that must be included in the ANDA 

concerns the generic company’s position vis-a-vis the patent that the pioneer manufacturer 

claims applies to the drug. Therefore, the ANDA filer must make one of four certifications to 

the FDA: 

I. that no patent for the pioneer drug has been filed with the FDA (a 

“Paragraph I Certification”); 

II. that the patent (or patents) for the pioneer drug has (or have) expired (a 

“Paragraph II Certification”); 

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III. that the patent for the pioneer drug will expire on a particular date and the 

generic company does not seek to market its generic product before that 

date (a “Paragraph III Certification”); or 

IV. that the patent for the pioneer drug is invalid or will not be infringed upon 

by the proposed generic company’s product (a “Paragraph IV 

Certification”). 

21 U.S.C. § 355(j)(2)(A)(vii). In the case of a patent that has not yet expired, the ANDA 

applicant’s only certification options are Paragraph III or IV certifications. See id. If the generic 

manufacturer makes a Paragraph IV Certification, the ANDA applicant must notify the patent 

owner of the filing and explain why the patent is invalid or will not be infringed. See 21 U.S.C. 

§ 355(j)(2)(A)(vi)(IV). 

43. The patent owner, upon receiving a Paragraph IV Certification from an ANDA 

applicant, has a 45-day statutory period in which to initiate a patent infringement suit against the 

applicant. See 21 U.S.C. § 355(j)(5)(B)(iii). If no action is initiated within 45 days, FDA 

approval of the generic product is not delayed by patent issues. However, if a patent 

infringement suit is brought within the 45-day window, FDA approval of the generic drug is 

automatically postponed until the earliest of: (i) the expiration of the patent; (ii) thirty months 

from the patent holder’s receipt of the Paragraph IV Certification (30-month stay); or (iii) a final 

judicial determination of invalidity or non-infringement from which no appeal can be or has been 

taken. Id.; 21 C.F.R. § 314.107. 

44. At all times relevant herein, under 21 U.S.C. § 355(j)(5)(B)(iv), the first applicant 

to submit an acceptable ANDA with a Paragraph IV Certification for a generic version of a 

brand-name drug receives a 180-day period of exclusivity before other ANDAs for the same 

drug can be approved by the FDA. The 180-day exclusivity period begins when the first ANDA 

applicant either (a) begins selling the generic drug or (b) obtains a final judgment of nonCase 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 15 of 47
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infringement in a patent infringement action, whichever occurs first. Thus, the first generic 

ANDA applicant has the opportunity to compete directly with the brand-name manufacturer for 

180 days without competition from other generic manufacturers. If, however, the patent holder 

is able to forestall the events which trigger the start of the 180-day period of exclusivity, it can 

delay indefinitely the entry of all generic competitors. 

D. The Development of Wellbutrin SR And Zyban 

45. Bupropion hydrochloride is an antidepressant used in the treatment of depression 

that is no longer subject to an extant patent. On June 25, 1974, the United States Patent and 

Trademark Office issued U.S. Patent No. 3,819,706 (the “ ’706 Patent”), granting to a 

predecessor of Defendants a compound patent on bupropion. 

46. In the mid-1980s, the FDA granted to Defendants’ predecessor approval to 

manufacture, market and sell bupropion hydrochloride under the brand name Wellbutrin. 

Defendants’ predecessors, thereafter, began the manufacture, marketing and sale of Wellbutrin. 

47. At that time, bupropion hydrochloride, or Wellbutrin, was sold in the form of an 

instant release tablet in which more than 75% of the bupropion was released from the tablet into 

dissolution media within about forty-five minutes. It was generally prescribed to be taken three 

or four times per day. 

48. The ’706 Patent expired in mid-1991. By that time, and for years before then, 

Defendants’ predecessors had enjoyed a monopoly on the sale of bupropion through the 

manufacture, marketing and sale of Wellbutrin. 

(i) The 1993 Sustained Released HPMC Patent Application

49. Subsequent to expiration of the ’706 Patent, Defendants developed a sustained 

release version of bupropion which it markets as Wellbutrin SR. This formulation allows users 

of the drug to treat depression with only one or two daily doses. 

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50. In August 1993, Defendants’ predecessor filed an application with the United 

States Patent and Trademark Office (“PTO”) seeking patent protection for a controlled sustained 

release tablet containing bupropion (the “1993 SR Application”). 

(ii) Prosecution of the 1993 SR Application

51. The prosecution of the 1993 SR Application made evident the need for all claims 

to focus on, and be limited by, the significant role that hydroxypropyl methylcellulose 

(“HPMC”) played in the invention. 

52. On April 13, 1994, the examiner rejected Claims Fourteen, Fifteen and Nineteen 

of the Application for lack of enablement. Specifically the examiner wrote: 

The rate of release is directly related to the release retarding effect of 

hydroxypropyl methylcellulose. While other excipients have been disclosed, the 

particular cellulose is considered critical for controlled and/or sustained release 

and should be incorporated into the independent claims. The disclosure of a 

single species does not provide a basis for disclosing a generic concept . . . . 

(Emphasis added.) 

53. In response, Defendants amended Claims Fourteen and Fifteen to recite that the 

tablets required HPMC. Defendants failed to amend Claims Eighteen and Nineteen at that time, 

but these claims were later amended by the examiner to identify the use of HPMC as the means 

for releasing bupropion. 

54. Moreover, Defendants’ proposed Claim One in the 1993 Application did not 

contain any recitations regarding bupropion release. The examiner, therefore, rejected this Claim 

for lack of enablement as well, noting that the claim needed to be limited: 

[A]pplicants are claiming a tablet that provides a distinct release profile. The 

advantage provided by the unique tablet differ [sic] from the instant release 

tablet. The limitations of claims 2-3 are considered critical and should be 

incorporated into claim 1 for proper enablement. (Emphasis added.) 

55. In response, Defendants made similar amendments to Claim One, limiting it with 

the release controlling language. 

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56. The examiner’s initial assessment of the 1993 SR Application was that the prior 

release controlling language in Claims One, Fourteen, Fifteen, Eighteen and Nineteen was too 

broad. By amending these claims (and indeed, by being forced to amend these claims), 

Defendants acknowledged and conceded that HPMC was the “particular cellulose that is critical 

for the controlled release of the tablets.” 

57. The PTO later mailed an Examiner’s Amendment, which was authorized by 

counsel for Defendants, adding an HPMC limitation to another two claims in the ’798 Patent. 

The PTO also issued a Notice of Allowability, signifying that the PTO’s previous rejection of the 

claims would be withdrawn based on the addition of the HPMC limitation. 

(iii) Issuance of the ’798 Patent

58. Based on the prosecution history, including the examiner’s analysis and the 

compulsory amendments, it was clear that the ultimate patent would cover HPMC as a control 

release agent. 

59. On June 27, 1995 -- after the claims in the 1993 SR Application had been limited 

during patent prosecution -- the PTO issued Patent No. 5,427,798 (the “ ’798 Patent”) entitled 

“Controlled sustained release tablets containing bupropion.” The ’798 Patent was issued to 

Defendants’ predecessor. 

60. Glaxo describes the sustained release tablet claimed in the ’798 Patent as follows: 

A controlled sustained release tablet having at least one year shelf life and 

containing bupropion hydrochloride, hydroxypropyl methylcellulose and cysteine 

hydrochloride or glycine hydrochloride with the tablet having a surface area to 

volume ratio to effectively control bupropion hydrochloride release in the body. 

61. The patent specifications and patent prosecution history make clear that the ’798 

Patent is a narrow patent claiming a specific form of extended release tablet of bupropion which 

incorporates the excipient hydroxypropyl methylcellulose (“HPMC”) as a control release agent. 

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16 

62. Also clear both from the nature of the claims made in the ’798 Patent, as well as 

from the patent prosecution history, is that HPMC as a release control agent is critical to the 

sustained release technology claimed by the ’798 Patent. 

63. Indeed, in its “Brief Statement of Invention,” Glaxo notes that the purpose for the 

presence of HPMC is for “controlling drug release rate.” 

64. Glaxo knew that hydroxypropyl cellulose had been recognized as a release 

controlling substitute excipient for HPMC when the patent application was filed and the ’798 

patent was issued. Glaxo also knew when this patent application was filed that polyvinyl alcohol 

could be used as a controlled released excipient. 

65. After limiting its claims, Glaxo could not broadly enforce the patent beyond the 

limitations established during the prosecution history. Under the legal doctrine of Prosecution 

History Estoppel or File Wrapper Estoppel, a patentee is not able to recapture subject matter 

surrendered during prosecution of the patent by claiming that the surrendered material is an 

equivalent of the patented invention. 

(iv) Wellbutrin SR and Zyban Go To Market

66. In October of 1996, the FDA granted final approval for Wellbutrin SR, and 

Defendants sought protection for the product by listing, among other things, the ‘798 Patent in 

the Orange Book. In Febuary of 1997, Defendants began marketing 50 mg, 100 mg and 150 mg 

dosages of Wellbutrin SR. 

67. In May of 1997, the FDA granted final approval for Zyban, and Defendants 

sought protection for the product by listing, among other things, the ‘798 Patent in the Orange 

Book. Later that year, Defendants began marketing 150 mg dosages of Zyban. 

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E. Unlawfully Supressed Generic Competition For Wellbutrin and 

Zyban 

 (i) ANDAs Submitted For Approval to Market Generic

 Versions of Wellbutrin SR and Zyban and the Patent

 Infringement Actions

68. Several manufacturers of generic drugs filed ANDAs with the Food and Drug 

Administration seeking authorization to market generic versions of Wellbutrin SR. These 

companies include Andrx, Watson, Eon, IMPAX, and Excel. 

69. While the patent claiming bupropion expired more than ten years ago, the ’798 

Patent claiming bupropion with HPMC in a sustained release formulation is still in effect. 

70. Because utilization of the sustained release technology patented by Glaxo would 

constitute infringement of the ’798 Patent, the above-referenced generic drug manufacturers have 

sought approval to market generic versions of Wellbutrin SR that utilized different sustained 

release formulations. 

71. Eon, Excel, Impax and Watson sought approval of a bupropion sustained release 

tablet that does not use HPMC as a control release agent and, therefore, would not infringe upon 

any valid patent. 

72. On June 18, 1999, Andrx submitted an ANDA for Wellbutrin SR 100 mg. market 

as well as for Zyban. The FDA rejected the application insofar as it pertained to the market on 

the ground the application lacked safety information pertaining to Eudragit E 100. 

73. In late July, 1999, the FDA informed Andrx that its ANDA application was not 

accepted for filing and requested additional information concerning the safety of Eudragit E 100. 

Before Andrx could submit the requested information, Watson submitted an ANDA for the 

Wellbutrin and Zyban which was accepted by the FDA, thereby making Watson the first filer for 

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18 

the Wellbutrin and Zyban markets and entitling it to the 180 day exclusivity period afforded by 

the Hatch-Waxman Act. 

74. Approximately 12 days after Watson submitted its ANDA application, Andrx 

submitted an amendment to its ANDA with the required safety information on Eudragit E 100. 

On August 27, 1999, the FDA informed Andrx of the acceptance of its ANDA as of the date of 

its August 12, 1999 filing. 

(ii) The Infringement Actions and the Watson Litigation

75. The filing of a patent infringement action triggers a 30-month stay on the sale of 

generic versions pursuant to 21 U.S.C. § 355(j)(5)(B)(iii). The 30-month stay is triggered 

irrespective of whether there is any likelihood of success, or even merit, to the patent 

infringement action. 

76. Defendants instituted a series of patent infringement actions that are objectively 

baseless and without merit for the purpose of triggering the 30-month stay and extending the 

time during which they enjoy complete exclusivity in the domestic market for Wellbutrin SR and 

Zyban. 

77. Glaxo has aggressively prosecuted the patent infringement actions in seeking to 

maintain their hold on the Wellbutrin SR market. 

78. Defendants’ lawsuits pressed the scope of the ’798 Patent. In commencing these 

actions, Defendants ignored the express limitations that they knew had been imposed by the PTO 

in order to obtain issuance of the ‘798 patent. Defendants knew that litigation against the 

potential generic entrants was ultimately likely to fail. 

79. Watson was the first-filer of an ANDA for 100 mg. sustained-release bupropion 

hydrochloride. 

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80. Glaxo received notice of Watson’s ANDA on October 26, 1999 and filed a patent 

infringement lawsuit against Watson on December 2, 1999. 

81. A year and a half later, Glaxo settled its patent infringement lawsuit against 

Watson in July 2001. Documents relating to the settlement and/or discontinuation of the action 

were filed under seal and are not publicly available. 

82. Following the settlement with Glaxo, Watson relinquished its exclusivity rights to 

the 100 mg. dosage of sustained-release bupropion hydrochloride. 

(iii) The Eon ANDA and Patent Litigation

83. In July 2000, Eon submitted ANDA 75-932 seeking FDA approval to sell generic 

versions of Wellbutrin SR and Zyban. 

84. Eon’s ANDA included a Paragraph IV Certification with regard to the ’798 Patent 

claiming that its medication did not infringe on Glaxo’s patent. 

85. Eon’s Paragraph IV Certification of non-infringement was predicated on the fact 

that its bupropion sustained release tablet did not utilize the HPMC release technology patented 

by Glaxo, but rather contained hydroxypropyl cellulose (“HPC”) as a control release agent. 

86. On November 29, 2000, Glaxo sued Eon in the Southern District of New York 

claiming that Eon’s generic Wellbutrin SR infringed two of its patents. 

87. On February 13, 2003, the United States District Court for the Southern District 

of New York held on reconsideration that fact issues exist as to whether Glaxo was estopped 

from asserting infringement under the doctrine of equivalents. The court again denied Glaxo’s 

summary judgment motion. 

88. On August 22, 2003, the United States District Court for the Southern District of 

New York granted Eon summary judgment finding claim 1 of the ’798 Patent invalid for lack of 

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specificity and denied summary judgment as to the allegation that the entire patent is invalid by 

reason of overbroadness. 

89. Notably on January 24, 2002, during the pendency of the litigation, Eon received 

tentative approval by the FDA to market its generic version of Wellbutrin SR and Zyban 

utilizing the HPC sustained release formulation. Eon received final approval to enter the market 

on November 26, 2003. 

90. Eon eventually received final approval in November, 2003 to market its 

bioequivalent generic version of Wellbutrin SR and Zyban in the United States. But for the 

unlawful conduct of Defendants, Eon would have been able to market, distribute and sell a 

generic equivalent of Wellbutrin and Zyban at least as early as July 1, 2001. The unlawful 

conduct includes the filing of baseless lawsuits seeking to enjoin the generic manufacturers from 

producing bioequivalent generic versions of Wellbutrin SR and/or Zyban on the grounds that 

these generics infringe upon Defendants’ patents. 

91. Eon did not enter the market until January 27, 2004. The delay of at least two 

years for the entry of a generic equivalent for Wellbutrin and Zyban was directly and 

proximately the result of the unlawful conduct of Defendants. 

(iv) The IMPAX ANDA and Patent Litigation

92. In August 2000, IMPAX Laboratories submitted an ANDA seeking FDA 

approval to sell generic versions of Wellbutrin SR and Zyban. 

93. Like Eon’s ANDA, IMPAX’s ANDA included a Paragraph IV Certification with 

regard to the ’798 Patent which was predicated on the fact that IMPAX’s proposed bupropion 

sustained release tablet utilized HPC as a control release agent, not HPMC. 

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21 

94. On September 28, 2000, Glaxo sued IMPAX in the Northern District of California 

for infringement of its ’798 Patent. 

95. At the time Glaxo commenced the patent infringement action against IMPAX, it 

was aware, as it was at the time the ’798 patent application was filed, that: (i) HPC had been 

recognized as a release controlling substitute excipient for HPMC; and (ii) by narrowing the 

patent claims during the prosecution, Glaxo abandoned any subject matter that existed between 

the original and amended claims. 

96. IMPAX countered by arguing that its product did not use the HPMC sustained 

release technology patented by Glaxo, and moved for summary judgment on the grounds that the 

prosecution history precluded Glaxo from trying to claim HPC as being covered by the ’798 

Patent. 

97. By substituting for the general means-function language originally included in the 

’798 Patent with a more specific HPMC limitation, Glaxo surrendered all equivalents of which it 

was or should have been aware and prosecution history estoppel barred infringement by the 

doctrine of equivalents. 

98. Summary judgment was therefore granted to IMPAX on August 21, 2002. 

99. In granting summary judgment, the Court rejected Glaxo’s argument that it did 

not surrender claims to an HPC equivalent because it did not test HPC as an alternative excipient 

in the bupropion sustained release tablets. The Court found that one skilled in the art would have 

known of the substitutability between HPMC and HPC for these purposes. 

100. The Court also placed significance on the fact that Glaxo had obtained a patent for 

a sustained-release formulation comprised of both HPC and HPMC in January 1990. This fact 

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seriously undermined any claim by Glaxo that it was unaware of HPC as a control release agent 

at the time it submitted and amended. 

101. Glaxo appealed the Northern District of California’s ruling in an attempt to 

preserve its market exclusivity and to dissuade IMPAX from bringing its product to market. 

102. On January 29, 2004, the Court of Appeals for the Federal Circuit affirmed the 

grant of summary judgment in favor of IMPAX. 

103. In early 2004, shortly after the Federal Circuit issued its decision in Glaxo v. 

IMPAX, involving facts virtually identical to those presented in the Eon lawsuit, Glaxo settled its 

claims against Eon. IMPAX was the first generic manufacturer to bring its 100 mg. versions of 

Wellbutrin and Zyban to the market. 

104. On January 28, 2004, IMPAX received final FDA approval to enter the market 

with a 100 mg. version of Wellbutrin and/or Zyban. 

(v) The Excel ANDA and Patent Litigation

105. In late 2001, Excel submitted an ANDA seeking FDA approval to sell generic 

versions of Wellbutrin SR and Zyban. The release control excipient used in Excel’s version of 

Wellbutrin SR and Zyban was polyvinyl alcohol (“PVA”). On January 25, 2002, Glaxo brought 

a patent infringement suit in the Eastern District of Virgina against Excel, claiming that Excel’s 

bupropion sustained release tablets infringed upon the ’798 Patent. 

106. The Court granted summary judgment to Excel on August 2, 2002. The court 

found that prosecution history estoppel prevented GSK from capturing PVA as an equivalent of 

HPMC. The ruling was remanded for additional fact finding by the Federal Circuit on January 

29, 2004, before being voluntarily dismissed under Rule 41 of the Federal Rules of Civil 

Procedure by Glaxo on April 29, 2004. 

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107. Specifically, the Court found that Excel’s generic version of Wellbutrin SR, 

utilizing PVA as a control release agent, did not literally infringe Glaxo’s patent covering 

HPMC. When Glaxo commenced this action, it was aware that: (i) PVA was recognized as a 

release controlling excipient at the time the patent application was filed and the patent was 

issued; and (ii) by narrowing the patent claims during prosecution of the patent, Glaxo 

abandoned any subject matter that existed between the original and amended claims. Glaxo 

knew when it commenced the action that no equivalents existed for the invention of the ’798 

patent that would cover the use of PVA as a release controlling excipient. 

F. The Elimination of Competition in the Sustain Released Buproprion 

Hydrochloride Market

108. The FDA’s tentative approval letter to Eon in January, 2002 confirmed that Eon’s 

generic product had been otherwise approved to go to market, but was prevented from doing so 

by legal impediments. 

109. At this time, the only legal impediment to Eon’s going to market with its 100 mg. 

generic version of Wellbutrin SR and/or Zyban was the 30-month stay in effect as a result of 

Defendants’ baseless patent infringement suit against it. 

110. Glaxo brought other patent infringement lawsuits against potential generic 

competitors to Wellbutrin SR and Zyban which automatically triggered 30-month stays 

preventing entry by generic competitors. 

111. In the Andrx suit, the district court awarded summary judgment in favor of Andrx, 

and the Court of Appeals for the Federal Circuit reversed. In the Excel suit, the Court found on 

summary judgment that Excel’s generic version of Wellbutrin SR, utilizing PVA as a control 

release agent, did not literally infringe Glaxo’s patent covering HPMC. When Glaxo 

commenced the patent infringement action against Excel, Glaxo was aware, as it was at the time 

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 26 of 47
24 

that it filed the ’798 patent application, that: (i) polyvinyl alcohol was recognized as a release 

controlling excipient; and (ii) by narrowing the patent claims during prosecution, Glaxo 

abandoned any subject matter that existed between the original and amended claims. 

112. In addition to IMPAX, Eon, Andrx, and Excel, Watson was the first company to 

submit an ANDA seeking FDA approval to sell 100 mg. generic Wellbutrin SR and/or Zyban. 

Watson later relinquished its first filer status entitling it to a 180 market exclusivity period under 

the Hatch Waxman Act. Thus, at the time Eon received tentative approval in January 2002, no 

generic manufacturer held marketing exclusivity rights for the 100 mg. dosage. 

113. In November 2003, the 30-month stay having expired, Eon sought and received 

final approval from the FDA for its generic version of sustained-release bupropion hydrochloride 

and announced that it would be bringing its product to market. 

114. Glaxo sought to further delay Eon from bringing its generic to market by filing a 

request for an injunction in the United States District Court for the Southern District of New 

York in November 2003. This action was eventually resolved in favor of Eon, but there was a 

further delay of the market entry by of Eon. 

115. Eon was finally able to bring its generic version of 100 mg. sustained-release 

bupropion hydrochloride to market on January 27, 2004, approximately two years after it would 

have come to market if not for Defendants’ unlawful acts. 

116. The acts and practices of Defendants, as herein alleged, had the purpose and 

effect of injuring competition by unlawfully delaying the entry of generic Wellbutrin SR and/or 

Zyban product into the relevant market. 

117. Watson’s settlement with Glaxo in July 2001 provided that Watson would be 

permitted to enter the market with a generic version of Wellbutrin SR manufactured by a Glaxo 

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 27 of 47
25 

subsidiary as soon as another generic competitor entered the market. Therefore, but for Glaxo’s 

unlawful filing of its meritless lawsuit against Eon, not only one, but at least two generic 

competitors to Wellbutrin SR and/or Zyban would have entered the market in July 2001. 

118. Defendants have engaged in monopolistic practices concerning Wellbutrin SR 

and Zyban to avoid a loss in market share and revenues that would inevitably result following the 

introduction to the market of a competing generic product. 

119. If generic competitors had not been unlawfully prevented from entering the 

relevant market and competing with Defendants, consumers and third-party payors such as 

Plaintiffs would have been free to substitute a lower-priced generic for the higher-priced brand 

name drug and would have paid less for Wellbutrin SR and/or Zyban products. 

120. Indeed, Defendants have corporate policies to extend and abuse the legitimate 

range of U.S. patent laws, and Defendants’ attempted extension of the Wellbutrin SR/Zyban 

monopoly is part of the pattern and practices of Defendants. For instance, the Federal Circuit 

Court of Appeals recently affirmed a District Court verdict that Defendants’ patent for the antiinflammatory prescription drug nabumetone -- which it markets under the brand-name Relafen -- 

was invalid. In re ’639 Patent Litig., 154 F. Supp. 2d 157 (D. Mass. 2001), aff’d sub nom. 

Smithkline Beecham Corp. v. Copley Pharm., 2002 U.S. App. LEXIS 16594 (Fed. Cir. Aug. 15, 

2002). In that case, the District Judge found that SmithKline Beecham had “engaged in a pattern 

of misrepresentation in its dealings with the PTO so pervasive as to negate any possibility that 

Beecham’s misrepresentations to the PTO were inadvertent “loose language” or otherwise 

“negligently made.” Id. at 66. The Court there also found Beecham’s witnesses “to be 

inconsistent, evasive and, many times, implausible.” Id. at 193-94. The Court further found that 

Beecham was attempting to persuade the PTO that there was no prior art anticipating its patent, 

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 28 of 47
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while evidence before the Court revealed that Defendant’s patent department knew this was not 

the case, and could not believe their success in getting the patent approved, and were happy that 

they had “put one over on” the PTO. Id. at 194. 

121. If a generic competitor had been able to enter the relevant market and compete 

with Defendants, consumers and third-party payors such as Plaintiffs would have been free to 

substitute a lower-priced generic for the higher-priced brand name drug and the Class would 

have paid less for Wellbutrin SR and/or Zyban products. Pharmacists generally are permitted, 

and in many instances required, to substitute generic drugs for their branded counterparts, unless 

the prescribing physician has directed that the branded product be dispensed. In addition, there 

is a ready market for generic products because certain third-party payors of prescription drugs 

(e.g., managed care plans) encourage or insist on the use of generic drugs whenever possible. A 

generic product can quickly and efficiently enter the marketplace at substantial discounts, 

generally leading to a significant erosion of the branded drug’s sales within the first year. 

122. By preventing generic competitors from entering the market, Defendants injured 

Plaintiffs and the other Class members in their business or property by causing them to pay more 

for Wellbutrin SR and/or Zyban products than they otherwise would have paid. Defendants’ 

unlawful conduct deprived Plaintiffs and other members of the Class of the benefits of 

competition that the antitrust laws and applicable state consumer protection laws were designed 

to preserve. 

INTERSTATE TRADE AND COMMERCE

123. At all times relevant herein, Defendants manufactured and sold substantial 

amounts of Wellbutrin SR and Zyban in a continuous and uninterrupted flow of commerce 

across state and national lines and throughout the United States as follows: 

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• Defendants transmitted funds as well as contracts, bills, and other forms of 

business communications and transactions in a continuous and uninterrupted 

flow of commerce across state and national lines in connection with the sale 

of Wellbutrin SR and Zyban; and 

• Defendants employed, in furtherance of their monopolization and attempt to 

monopolize, as alleged herein, the United States mails and interstate and 

international telephone lines as well as means of interstate and international 

travel. 

124. The illegal monopolization and attempt to monopolize the markets for Wellbutrin 

SR and Zyban as alleged herein have substantially affected interstate and foreign commerce. 

RELEVANT MARKET

125. The relevant product markets are Wellbutrin SR and Zyban and their generic 

bioequivalents rated “AB” by the FDA. The relevant geographic market is the United States. 

Defendants’ market share in the relevant product and geographic markets was 100%. Since 

January 2004, when generics were finally able to come to market, Defendants market share 

eroded due to increasing generic competition. 

COUNT ONE 

For Declaratory and Injunctive Relief Under 

Section 16 of the Clayton Act For Violations of Section 2 of the Sherman Act

126. Plaintiffs incorporate by reference the preceding allegations. 

127. Pursuant to U.S. patent laws, Defendants were given a lawful monopoly over 

sales of prescription Wellbutrin 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. 

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128. Defendants knowingly and willfully engaged in a course of conduct designed to 

extend, unlawfully, their monopoly power. This course of conduct included, inter alia,

improperly filing and prosecuting a series of patent infringement actions against companies 

seeking to market an extended release bupropion hydrochloride product. Defendants’ filing and 

prosecution of these actions was designed to delay the introduction of generic formulations of 

Wellbutrin SR and/or Zyban into the market and was in violation of Section 2 of the Sherman 

Act. 

129. During the Class Period, Defendants possessed monopoly power in the relevant 

market. Defendants intentionally and wrongfully maintained their monopoly power in the 

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

and possessing its unlawful monopoly power over the market for Wellbutrin SR and Zyban 

Defendants set, maintained and raised the price of Wellbutrin SR and Zyban to artificially high 

and/or supracompetitive levels. 

130. Plaintiffs and members of the Class have been injured in their business or 

property by reason of Defendants’ antitrust violations. Their injury consists of having paid and 

continuing to pay higher prices for Wellbutrin SR and/or Zyban products than they would have 

paid in the absence of those violations. Such injury is of the type antitrust laws were designed to 

prevent and flows from that which makes Defendants’ conduct unlawful. Plaintiffs and members 

of the Class are likely to purchase Wellbutrin SR and/or Zyban in the future. Injunctive relief is, 

therefore, appropriate under 15 U.S.C. § 26. 

131. Plaintiffs seek injunctive and declaratory relief to enjoin Defendants from 

engaging in future anticompetitive practices concerning the manufacture, distribution or sale of 

Wellbutrin SR and Zyban. Plaintiffs do not seek damages under Count I. 

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COUNT TWO 

For Monopolization Under State Law

132. Plaintiffs incorporate by reference the preceding allegations. 

133. As described above, Defendants knowingly and willfully engaged in a course of 

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

improperly filing patent infringement actions against generic manufacturers seeking to obtain 

approval to sell generic versions of Wellbutrin SR and/or Zyban. 

134. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of Arizona Revised Stat. §§ 44-1401, et seq., with respect to 

purchases of Wellbutrin SR and Zyban in Arizona by members of the Class. 

135. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of Cal. Bus. & Prof. Code §§ 16700, et seq., and Cal. Bus. & 

Prof. Code §§ 17200, et seq. with respect to purchases of Wellbutrin SR and Zyban in California 

by members of the Class. 

136. Defendants have intentionally and wrongfully maintained their monopoly power 

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

purchases of Wellbutrin SR and Zyban in the District of Columbia by members of the Class. 

137. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of Fla. Stat. §§ 501. Part II, et seq., with respect to purchases 

of Wellbutrin SR and Zyban in Florida by members of the Class. 

138. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of Iowa law with respect to purchases of Wellbutrin SR and 

Zyban in Iowa by members of the Class. 

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 32 of 47
30 

139. Defendants have intentionally and wrongfully maintained their monopoly power 

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

purchases of Wellbutrin SR and Zyban in Kansas by members of the Class. 

140. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of La. Rev. Stat. §§ 51:137, et seq., with respect to purchases 

of Wellbutrin SR and Zyban in Louisiana by members of the Class. 

141. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of Me. Rev. Stat. Ann. 10, § 1101, et seq., with respect to 

purchases of Wellbutrin SR and Zyban in Maine by members of the Class. 

142. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of Mass. Ann. Laws ch. 93, et seq., with respect to purchases 

of Wellbutrin SR and Zyban in Massachusetts by members of the Class. 

143. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of Mich.CompLaws Ann. §§ 445.771, et seq., with respect to 

purchases of Wellbutrin SR and Zyban in Michigan by members of the Class. 

144. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of Minn. Stat. §§ 325D.52, et seq. with respect to purchases 

of Wellbutrin SR and Zyban in Minnesota by members of the Class. 

145. Defendants have intentionally and wrongfully maintained their monopoly power 

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

purchases of Wellbutrin and Zyban in Mississippi by members of the Class. 

146. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of Neb. Code Ann. §§ 59-801, et seq., with respect to 

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 33 of 47
31 

purchases of Wellbutrin and Zyban in Nebraska by members of the Class. 

147. Defendants have intentionally and wrongfully maintained their monopoly power 

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

purchases of Wellbutrin SR and Zyban in Nevada by members of the Class. 

148. Defendants have intentionally and wrongfully maintained their monopoly power 

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

§§ 56:8-1 et seq., with respect to purchases of Wellbutrin SR and Zyban in New Jersey by 

members of the Class. 

149. Defendants have intentionally and wrongfully maintained their monopoly power 

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

purchases of Wellbutrin SR and Zyban in New Mexico by members of the Class. 

150. Defendants have intentionally and wrongfully maintained their monopoly power 

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

respect to purchases of Wellbutrin SR and Zyban in New York by members of the Class. 

151. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of N.C. Gen. Stat. §§ 75-1, et seq., with respect to purchases 

of Wellbutrin SR and Zyban in North Carolina by members of the Class. 

152. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of N.D. Cent. Code § 51-08.1-01, et seq., with respect to 

purchases of Wellbutrin SR and Zyban in North Dakota by members of the Class. 

153. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of S.D. Codified Laws Ann. § 37-1, et seq., with respect to 

purchases of Wellbutrin SR and Zyban in South Dakota by members of the Class. 

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154. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of Tenn. Code Ann. §§ 47-25-101, et seq., with respect to 

purchases of Wellbutrin SR and Zyban in Tennessee by members of the Class. 

155. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of Vt. Stat. Ann. 9, § 2453, et seq., with respect to purchases 

of Wellbutrin SR and Zyban in Vermont by members of the Class. 

156. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of W.Va. Code §§ 47-18-1, et seq., with respect to purchases 

of Wellbutrin SR and Zyban in West Virginia by members of the Class. 

157. Defendants have intentionally and wrongfully maintained their monopoly power 

in the relevant markets in violation of Wis. Stat. § 133.01, et seq., with respect to purchases of 

Wellbutrin SR and Zyban in Wisconsin by members of the Class. 

158. Plaintiffs 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 Wellbutrin SR and Zyban prescription drugs 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. 

159. Plaintiffs and the Class seek damages and multiple damages as permitted by law 

for their injuries by Defendants’ violations of the aforementioned statutes. 

COUNT THREE 

For Unfair and Deceptive Trade Practices Under State Law

160. Plaintiffs incorporate by reference the preceding allegations. 

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161. Defendants engaged in unfair competition or unfair, unconscionable, deceptive or 

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

when they filed baseless patent infringement actions against Eon and IMPAX and other generic 

manufacturers in order to prevent the FDA from granting final approval of pending applications 

of would-be competitors to market generic Wellbutrin SR and Zyban. As a direct and proximate 

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

Plaintiffs and class members were deprived of the opportunity to purchase a generic version of 

Wellbutrin SR and Zyban, from February 2002 until January 2004, and forced to pay higher 

prices for Buproprian Hydrochloride SR from January 2004 to present. 

162. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

163. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

164. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

165. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

166. Defendants have 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. 

167. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

168. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

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34 

169. Defendants have 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. 

170. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

171. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

172. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

173. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

174. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

175. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

176. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

177. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

178. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

179. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

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35 

180. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

181. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

182. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

183. Defendants have engaged in unfair competition or unfair or deceptive acts or 

practices in violation of Vernon’s Missouri Stat. § 407.010, et seq. 

184. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

185. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

186. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

187. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

188. Defendants have engaged in unfair competition or unfair, unconscionable or 

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

189. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

190. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 38 of 47
36 

191. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

192. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

193. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

194. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

195. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

196. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

197. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

198. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

199. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

200. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

201. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 39 of 47
37 

202. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

203. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

204. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

205. Defendants have engaged in unfair competition or unfair, deceptive or fraudulent 

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

206. Defendants have engaged in unfair competition or unfair or deceptive acts or 

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

207. Plaintiffs and members of the class members 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 Wellbutrin SR and Zyban prescription 

drugs 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. 

COUNT FOUR 

Unjust Enrichment

208. Defendants have benefited from the monopoly profits on their sales of Wellbutrin 

SR resulting from the unlawful and inequitable acts alleged in this Complaint. 

209. Defendants’ financial benefits resulting from their unlawful and inequitable 

conduct are traceable to overpayments for Wellbutrin SR and Zyban by Plaintiffs and members 

of the Class. 

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 40 of 47
38 

210. Plaintiffs and the Class have conferred upon Defendants an economic benefit, in 

the nature of profits resulting from unlawful overcharges and monopoly profits, to the economic 

detriment of Plaintiffs and the Class. 

211. The economic benefit of overcharges and unlawful monopoly profits derived by 

Defendants through charging supra-competitive and artificially inflated prices for Wellbutrin SR 

and Zyban is a direct and proximate result of Defendants’ unlawful practices. 

212. The financial benefits derived by Defendants rightfully belong to Plaintiffs and 

the Class, as Plaintiffs and the Class paid anticompetitive and monopolistic prices during the 

Class Period, inuring to the benefit of Defendants. 

213. It would be inequitable for the Defendants to be permitted to retain any of the 

overcharges for Wellbutrin SR and Zyban derived from Defendants’ unfair and unconscionable 

methods, acts and trade practices alleged in this Complaint. 

214. Defendants should be compelled to disgorge in a common fund for the benefit of 

Plaintiffs and the Class all unlawful or inequitable proceeds received by them. 

215. A constructive trust should be imposed upon all unlawful or inequitable sums 

received by Defendants traceable to Plaintiffs and the Class. 

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

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court enter an Order: 

A. certifying the Class pursuant to the Federal Rules of Civil Procedure, certifying 

Plaintiffs as the representatives of the Class, and designating their counsel as counsel for the 

Class; 

B. declaring that Defendants’ conduct to be in violation of § 2 of the Sherman Act; 

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 41 of 47
39 

C. declaring the Defendants’ conduct to be in violation of the antitrust and/or 

deceptive practice statutes in the Indirect Purchaser States; 

D. enjoining and restraining Defendants’ continuing violations of § 2 of the Sherman 

Act, pursuant to § 16 of the Clayton Act; 

E. granting Plaintiffs and the Class equitable relief in the nature of disgorgement, 

restitution, and the creation of a construction trust to remedy Defendants’ unjust enrichment; 

F. granting Plaintiffs and the Class damages as permitted by law; 

G. granting Plaintiffs the right of disgorgement; 

H. granting Plaintiffs and the Class their costs of prosecuting this action, together 

with interest and reasonable attorneys’ fees, experts’ fees and costs; and 

I. granting such other relief as this Court may deem just and proper. 

JURY TRIAL DEMAND

Plaintiffs demand a trial by jury of all issues so triable. 

Dated: December 17, 2004 BOLOGNESE & ASSOCIATES, LLC

 By: ____________________________ 

 Anthony J. Bolognese 

 Joshua H. Grabar (JG-1707) 

 One Penn Center 

 1617 JFK Boulevard, Suite 650 

 Philadelphia, PA 19103 

 Telephone: (215) 814-6750 

 Facsimile: (215) 814-6764 

Joseph H. Meltzer 

SCHIFFRIN & BARROWAY, LLP

Three Bala Plaza East 

Suite 400 

Bala Cynwyd, PA 19004 

Telephone: (610) 667-7706 

Facsimile: (610) 667-7056 

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 42 of 47
40 

Michael M. Buchman 

J. Douglas Richards 

MILBERG WEISS BERSHAD 

 & SCHULMAN LLP

One Pennsylvania Plaza 

New York, NY 10119 

Telephone: (212) 594-5300 

Facsimile: (212) 868-1229 

Thomas M. Sobol 

David S. Nalven 

HAGENS BERMAN LLP

One Main Street 

Cambridge, MA 02142 

Telephone: (617) 482-3700 

Facsimile: (617) 482-3003 

Craig R. Speigel 

HAGENS BERMAN LLP 

700 South Flower Street 

Los Angeles, CA 90017-4101 

Telephone: (213) 330-7150 

Facsimile: (213) 330-7152 

Joseph J. Tabacco, Jr. 

BERMAN DEVALERIO PEASE 

 TABACCO BURT & PUCILLO

425 California Street 

Suite 2025 

San Francisco, CA 94104-2205 

Telephone: (415) 433-3200 

Facsimile: (415) 433-6382 

Michael J. Flannery, Esq. 

CAREY & DANIS, L.L.C.

8182 Maryland Avenue, Suite 1400 

St. Louis, MO 63105 

Telephone: (314) 725-7700 

Facsimile: (314) 725-7700 

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 43 of 47
41 

Matthew J. Fusco 

Michael T. Harren 

CHAMBERLAIN D’AMANDA 

 OPPENHEIMER & GREENFIELD

1600 Crossroads Office Building 

Two State Street 

Rochester, NY 14614 

Telephone: (716) 232-3730 

Facsimile: (716) 232-3882 

J. Cecil Gardner 

Kimberly Calametti Walker 

GARDNER, MIDDLEBROOKS, 

 GIBBONS & KITRELL, P.C.

1119 Government Street 

Post Office Drawer 3103 

Mobile, AL 36652 

Telephone: (251) 433-8100 

Facsimile: (251) 433-8181 

Samuel M. Hill 

GARDNER, MIDDLEBROOKS, 

 GIBBONS & KITRELL, P.C. 

2013 1st Avenue North, Suite 450 

Birmingham, AL 35203 

Telephone: (205) 250-7776 

Facsimile: (205) 250-7675 

David Pastor 

GILMAN AND PASTOR, LLP

999 Broadway, Suite 500 

Saugus, MA 01906 

Telephone: (781) 231-7850 

Facsimile: (781) 231-7840 

Samuel Heins 

Stacy Mills 

HEINS MILLS & OLSON, P.C.

700 Northstar East 

608 Second Avenue South 

Minneapolis, MN 55402 

Telephone: (612) 338-4605 

Facsimile: (612) 338-4692 

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 44 of 47
42 

Marc H. Edelson 

HOFFMAN & EDELSON, LLC

45 West Court Street 

Doylestown, PA 18901 

Telephone: (215) 230-8043 

Facsimile: (215) 230-8735 

Jon Karmel 

KARMEL & GILDEN

221 N. LaSalle Street 

Suite 1414 

Chicago, IL 60601 

Telephone: (312) 641-2910 

Facsimile: (312) 641-0781 

Kenneth A. Wexler 

THE WEXLER FIRM

One North LaSalle Street 

Suite 2000 

Chicago, IL 60602 

Telephone: (312) 346-2222 

Facsimile: (312) 346-0022 

Ann D. White 

Jayne A. Goldstein 

Michael J. Kane 

MAGER WHITE & GOLDSTEIN, LLP

One Pitcairn, Suite 2400 

165 Township Line Road 

Jenkintown, PA 19046 

Telephone: (215) 481-0273 

Facsimile: (215) 481-0271 

James H. McFerrin 

McFERRIN & STERLING LLC

1920 Huntington Road 

Birmingham, AL 35209 

Telephone: (205) 870-5704 

Facsimile: (205) 870-5770 

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 45 of 47
43 

Ira Richards 

TRUJILLO, RODRIGUEZ 

 & RICHARDS, LLC

The Penthouse 

226 West Rittenhouse Square 

Philadelphia, PA 19103 

Telephone: (215) 731-9004 

Facsimile: (215) 731-9044 

Mary Jane Edelstein Fait 

WOLF HALDENSTEIN ADLER 

 FREEMAN & HERZ LLC 

656 West Randolph Street 

Suite 500 West 

Chicago, IL 60661 

Telephone: (312) 466-9200 

Facsimile: (312) 466-9292 

Lester L. Levy 

WOLF POPPER LLP

845 Third Avenue 

New York, NY 10022 

Telephone: (212) 759-4600 

Facsimile: (212) 486-2093 

Evan J. Smith, Esquire 

BRODSKY & SMITH, LLC

Two Bala Plaza, Suite 602 

Bala Cynwyd, PA 19004 

Telephone: (610) 667-6200 

Facsimile: (610) 667-9029 

David Kalow 

Scott Locke 

KALOW & SPRINGUT 

488 Madison Avenue 

New York, New York 10022 

Telephone: (212) 813-1600 

Gene Richard 

WAYNE RICHARD HURWITZ & MCALOON 

One Boston Place 

Boston, MA 02108 

Telephone: (617) 720-7870 

Case 2:04-cv-05898-LS Document 1 Filed 12/17/04 Page 46 of 47
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Robert G. Eisler 

LIEFF CABRASER HEIMANN 

 & BERNSTEIN, LLP

780 Third Avenue, 48th Floor 

New York, NY 10017 

Telephone: (212) 355-9500 

Facsimile: (212) 355-9592 

Counsel for Plaintiffs

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