Published in Law360
By Hailey Konnath
Perrigo will pay $10 million to consumers accusing the company of cutting an anticompetitive agreement with Gerber to maintain a monopoly in the storebrand infant formula market, according to a motion filed in New York federal court Tuesday.
Under the proposed deal, Perrigo Co. PLC is also barred from entering into any agreement that “restrains, prevents, restricts, or distorts free market competition without legitimate business justification or procompetitive benefit” for the next three years. And Perrigo must cooperate with theconsumers in their ongoing litigation against Gerber, the consumers said.
“For example, such cooperation includes Perrigo making available its directors, officers and employees for declarations, affidavits, depositions and testimony at trial, as well as producing transaction data, authenticating documents for trial and meeting with counsel,” the consumers said.
“The proposed settlement is an excellent result for plaintiffs and class members,” they added in the motion.
The agreement was first announced in August, although details weren’t available at that time. The deal applies to all persons in the U.S. who, between April 2020 and now, indirectly purchased storebrand infant formula for personal use that was manufactured or sold by Perrigo.
Notably, interim class counsel with Spector Caldes & Corrigan PC and Saltz Mongeluzzi Bendesky PC aren’t seeking an award of attorney fees or service awards for the class representatives. However, they do want to be able to use up to $1.5 million of the settlement amount to cover litigation expenses, primarily expert costs, per the motion.
Perrigo has also settled litigation with packager P&L Development LLC, which alleged that Gerber breached its contract with P&L to honor an existing, allegedly anticompetitive agreement with Perrigo. Both P&L and the consumers also sued Gerber.
Last month, U.S. District Judge Nina Gershon rejected Gerber’s partial motion to dismiss P&L’s claims over Perrigo’s November 2022 acquisition of Gerber’s only U.S. infant formula plant, dubbed the “Gateway” plant in Eau Claire, Wisconsin. Judge Gershon held that P&L’s allegations are sufficient, at least for now.
Perrigo and counsel for the consumers didn’t immediately respond to requests for comment late Wednesday.
The consumers are represented by Jeffrey J. Corrigan and Jeffrey L. Spector of Spector Caldes & Corrigan PC and Simon B. Paris, Joshua D. Snyder and John E. Sindoni of Saltz Mongeluzzi Bendesky
PC.
Perrigo is represented by C. Scott Lent, Annette Cremata Day, Veronica Guerrero and Wilson Mudge of Arnold & Porter Kaye Scholer LLP.
The case is Thomas Conry et al. v. Gerber Products Co. et al., case no. 1:24-cv-06784, in the U.S. District Court for the Eastern District of New York.