Perrigo plc
“The first certification of a foreign purchaser class
since the Supreme Court’s landmark 2010 Morrison ruling.”
Jeremy A. Lieberman
Jeremy A. Lieberman
Pomerantz secured final court approval of a $97 million settlement for investors in pharmaceutical company Perrigo Co. plc in September 2024, after nearly seven years of litigation before three different judges, more than 30 depositions, and review of more than half a million documents. The groundbreaking case made new law that expands global investors’ rights.
The investors alleged that Perrigo and some senior officers and directors concealed problems with the integration of Omega Pharmaceuticals, which Perrigo had acquired in 2015, and concealed anticompetitive conduct in Perrigo’s generic drugs unit. The investors argued that Perrigo’s misrepresentations aimed to thwart a hostile takeover bid by competitor Mylan, Inc. and that they suffered harm when the truth came out, resulting in the departure of the CEO and impairment charges that eventually totaled more than $2 billion.
The initial complaint was filed in May 2016. Pomerantz filed an amended complaint in May 2017, after further admissions by Perrigo and after federal officials raided its Michigan headquarters. A year later, U.S. District Judge Madeline Cox Arleo of the District of New Jersey sustained the core claims related to Perrigo’s misrepresentations about Omega and its generic drug practices.
Pomerantz represented a number of Israeli institutional investors that purchased Perrigo securities on both the NYSE and the TASE after an offer by Mylan N.V. to tender Perrigo shares in November 2015. Perrigo has been dual-listed on the NYSE and the TASE for more than a decade. Pomerantz set historic precedent for global investors on November 14, 2019, when Judge Arleo certified parallel classes of investors that purchased Perrigo shares on the New York Stock Exchange and on the Tel Aviv Stock Exchange. The ruling was the first to certify a foreign purchaser class since the U.S. Supreme Court’s 2010 ruling in Morrison v. National Australia Bank, Ltd, which appeared to close U.S. federal courts to investors who purchased on foreign exchanges.
Pomerantz asked the court to certify three classes: a U.S. purchaser class, a Tel Aviv Stock Exchange purchaser class, and a tender offer class for investors who held Perrigo shares at the expiration of Mylan’s failed tender offer. Pomerantz demonstrated that trading on the Tel Aviv Stock Exchange satisfied each of the criteria traditionally used to assess market efficiency. The court accepted these arguments and certified all three proposed classes.
After the ruling, the defendants attempted to unravel class certification by seeking interlocutory appeal, but the United States Court of Appeals for the Third Circuit rejected their petition.
Discovery was lengthy and challenging. Between the summer of 2018, when a discovery stay was lifted, and late 2020, Pomerantz obtained and reviewed millions of pages of documents, and took or participated in more than 30 fact witness depositions. This discovery yielded solid evidence supporting plaintiffs’ Omega claims, and circumstantial evidence of anticompetitive practices in Perrigo’s generic drug division. The early 2018 death of a key witness who was a generic drug sales executive at Perrigo, and the United States Department of Justice’s intervention to halt depositions of witnesses it believed to be important to the government’s price fixing investigation, both played a role in constraining discovery.
In June 2021, just as the parties were finishing briefing defendants’ motions for summary judgment, the case was reassigned to U.S. District Judge Julien X. Neals. Judge Neals held oral arguments in April 2022, which lasted for more than seven hours. In July 2023, Chief District Court Judge Renée Marie Bumb reassigned the case (and the motions for summary judgment) to herself. A month later, she issued a split decision, sustaining most of the Omega claims against Perrigo and Joseph Papa, ordering further briefing and argument on the generic drug-related claims against Perrigo, and granting summary judgment dismissing other claims. Chief Judge Bumb then ordered the parties to mediate. In April 2024, after several mediation sessions, the parties agreed to resolve all claims for a cash payment of $97 million.
Pomerantz’s Perrigo litigation is led by partners Jeremy A. Lieberman and Joshua B. Silverman.
Roofer’s Pension Fund v. Papa, et al. No. 16-2805 (D.N.J.)
Class Period: April 21, 2015 to May 3, 2017, both dates inclusive
For violations of the Securities Exchange Act of 1934