Dena C. Sharp

In 2018, Sharp added her name to Girard Sharp, the plaintiff-side class action boutique she joined in 2006 when it was Girard Gibbs LLP. She specializes in antitrust claims against pharmaceutical targets like Allergan plc and Jazz Pharmaceuticals plc.

“Business has been absolutely terrific,” she said of the firm’s recent growth. “We have added another partner and hired several associates.”

Sharp attained a $30 million settlement this year in serving as co-lead counsel for a certified class of end-payers for Restasis, an Allergan blockbuster used to treat dry-eye disease. The class alleges that Allergan employed anticompetitive tactics to protect its monopoly—including the unusual move of transferring its Restasis patent interests to the St. Regis Mohawk Tribe in upstate New York in hopes of asserting sovereign immunity to shield its intellectual property. In re: Restasis Antitrust Litigation, 1:18-MD-02819 (E.D. N.Y., transfer order filed Jan. 21, 2018).

“Isn’t that just unbelievable,” she said. “I’d never heard of anything quite that brazen. But the case boiled down to first principles, the defendants’ attempts to suppress generic competition that would keep cheaper drugs from consumers.”

After defeating Allergan’s motion to dismiss and prevailing on key privilege challenges, the end-payers successfully moved for class certification. Sharp and colleagues succeeded despite what appeared to be a major hurdle: shortly before, in a similar case over the colitis drug Asacol, the 1st U.S. Circuit Court of Appeals had decertified an end-payer class because it included so-called uninjured purchasers. Sharp defined those as those who would have stuck with the brand even if cheaper generics were available.

Even with those headwinds, Sharp and colleagues pressed on in a class certification hearing. After several days of oral argument and evidentiary hearings, which included Sharp’s cross-examination of Allergan’s experts, the judge certified the class and granted plaintiff motions to exclude two Allergan experts.

“One of their eye care specialists admitted that the first draft of her report was written by Alergan’s lawyers, not by her,” Sharp said. “And we put on experts to distinguish our case from Asacol and to demonstrate the ways we thought that Asacol was misguided as insufficiently nuanced.” With summary judgment motions pending, the parties settled. “This was a fair and excellent result,” Sharp said.

In Feb. 2021, Sharp was appointed interim co-lead counsel for a class of purchasers of a narcolepsy medication. “This is another generic suppression case with a pay-for-delay component,” she said. “And it’s for a drug that people really need.” In re Xyrem Antitrust Litigation, 5:20-MD-02966 (N.D. Cal., filed Dec. 16, 2020).

The FDA has alleged that the drug maker, Jazz Pharmaceuticals, blocked generic entry by not negotiating with the generics in good faith. “Here we see another argument for private enforcement,” Sharp said.

--John Roemer