On April 22, 2010, Justice Paul Perell of the Ontario Superior Court of Justice dismissed a proposed $300 million nationwide class action against GlaxoSmithKline Inc. and four related companies (collectively “GSK”) on a motion to strike, ruling that it was “plain and obvious” that the action could not succeed.
The plaintiff alleged that the GSK entities had conspired among themselves to use provisions in Canada's patent laws to litigate against, and delay the market entry of, generic competitors to GSK's anti-anxiety drug Paxil. The plaintiff complained that GSK's conduct amounted to abuse of process and common-law conspiracy and also pleaded waiver of tort, seeking damages or disgorgement on behalf of all Canadian consumers who had purchased Paxil at times when she said that generic equivalents should have been available.
A motion testing the viability of the pleading was brought in advance of the certification motion. Among other things, Justice Perell ruled that abuse of process could not be alleged by a bystander to the allegedly abusive process, that a party allegedly conspiring to advance its own commercial interests lacked the requisite predominant purpose of harming the plaintiff and that waiver of tort requires a wrong, which could not be made out given his rulings on the first two causes of action.
The plaintiff will be appealing the decision.
McMillan LLP was counsel for GSK with a team that comprised David Kent, Neil Campbell, Brad Hanna and Geoff Moysa, with Timothy Thelen and Josée Gravelle of GSK.
Sutts, Strosberg LLP was counsel for the plaintiff with a team that comprised Harvey Strosberg, QC, William Sasso, Jacqueline Horvat and Ed Morgan, Professor of Law at University of Toronto.
The plaintiff alleged that the GSK entities had conspired among themselves to use provisions in Canada's patent laws to litigate against, and delay the market entry of, generic competitors to GSK's anti-anxiety drug Paxil. The plaintiff complained that GSK's conduct amounted to abuse of process and common-law conspiracy and also pleaded waiver of tort, seeking damages or disgorgement on behalf of all Canadian consumers who had purchased Paxil at times when she said that generic equivalents should have been available.
A motion testing the viability of the pleading was brought in advance of the certification motion. Among other things, Justice Perell ruled that abuse of process could not be alleged by a bystander to the allegedly abusive process, that a party allegedly conspiring to advance its own commercial interests lacked the requisite predominant purpose of harming the plaintiff and that waiver of tort requires a wrong, which could not be made out given his rulings on the first two causes of action.
The plaintiff will be appealing the decision.
McMillan LLP was counsel for GSK with a team that comprised David Kent, Neil Campbell, Brad Hanna and Geoff Moysa, with Timothy Thelen and Josée Gravelle of GSK.
Sutts, Strosberg LLP was counsel for the plaintiff with a team that comprised Harvey Strosberg, QC, William Sasso, Jacqueline Horvat and Ed Morgan, Professor of Law at University of Toronto.
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