Four major pharmacy chains—Walgreen Co., Kroger Co., Albertsons Companies, and H-E-B—accused Teva of orchestrating a multi-pronged scheme to protect its $4 billion-a-year Copaxone franchise from generic competition. The retailers alleged Teva engaged in exclusionary agreements with pharmacy benefit managers, launched a misleading campaign to doctors about generic safety, shifted patients from 20mg to 40mg doses to avoid generic substitution, and provided over $300 million in charitable copay assistance to keep patients on brand Copaxone rather than cheaper generics.
Judge Neals upheld Special Master Faith Hochberg's finding that the market shift allegations were time-barred under the Sherman Act's four-year statute of limitations. As Neals explained, 'The market switch happened in 2014 and 2015—outside the limitations period' since the lawsuit was filed in 2022. The judge rejected retailers' argument that they could recover for conduct occurring outside the limitations period, noting that 'generic 20mg and 40mg Copaxone were on the market through the entire limitations period of 2018 to 2022,' meaning retailers 'could freely buy generic 20mg or 40mg Copaxone.'
On the copay assistance allegations, Judge Neals delivered some of the opinion's strongest language against the retailers' theory. 'The Retailers' extraordinary proposition—that any conduct causing patients to choose brand drugs over generics is anticompetitive—is misguided,' he wrote, emphasizing that 'cutting prices in order to increase business often is the very essence of competition.' Neals concluded that 'Teva's copay assistance made Copaxone cheaper' and 'the fact that patients stayed on Copaxone reflects the results of legitimate price competition.'
The case originated in 2022 when drug wholesalers sued Teva, later splitting into separate actions when the retailers filed their own complaint in Vermont in April 2025. The Vermont court granted Teva's motion to transfer the case to New Jersey in September 2025, where Special Master Hochberg consolidated it with the wholesaler action. Following extensive oral arguments in December 2023 and early 2024, Hochberg issued her report in February 2025 recommending partial dismissal of the retailers' claims.
The retailers had argued that even if individual elements of Teva's alleged scheme weren't independently unlawful, they should survive as part of an 'overall monopolistic scheme.' Judge Neals rejected this approach, adopting the special master's framework that 'for the Court to consider legal conduct as part of an anticompetitive scheme, the plaintiff must plausibly allege the legal conduct contributed to the scheme's anticompetitive effect.' He found the retailers failed to show any 'plausibly articulated synergy' between the dismissed conduct and the surviving claims involving PBM agreements and the 'dispense as written' campaign.
The ruling leaves intact the retailers' core allegations that Teva strong-armed pharmacy benefit managers into excluding generic Copaxone from insurance formularies and directed sales representatives to make false statements about generic safety to persuade doctors to write 'dispense as written' prescriptions. Special Master Hochberg had recommended allowing those claims to proceed, finding they stated plausible antitrust violations under the rule of reason standard.
The decision represents a mixed outcome in pharmaceutical antitrust litigation that has intensified scrutiny of brand manufacturers' tactics to delay generic competition. While Judge Neals dismissed significant portions of the retailers' case, the surviving PBM and misrepresentation claims could still expose Teva to substantial damages given Copaxone's status as one of the world's top-selling multiple sclerosis treatments, with annual sales exceeding $1 billion even after generic entry.