Summary

On July 27, 2026, a federal judge in the Eastern District of Pennsylvania granted summary judgment in favor of a health insurance company and opt-out plaintiff in a large multidistrict antitrust litigation against a generic drug supplier and other companies alleging price-fixing violations associated with various generic drugs.

In reaching the ruling, the court relied heavily on factual admissions made by the supplier at the government’s insistence in connection with a Deferred Prosecution Agreement (“DPA”) the company had previously reached with the Department of Justice to avoid a potentially devastating criminal charge.

The case offers an important reminder that a positive outcome in a criminal investigation can still carry harmful collateral consequences in related civil matters.

Background

In August 2020, the government indicted the supplier on Sherman Act charges related to its role in conspiring with several other generic drug companies to fix prices on pravastatin and other generic drugs. The indictment came approximately two years after the filing of a civil action by the plaintiff based on similar allegations.

In August 2023, seeking to avoid the consequences of a criminal conviction (including the possible loss of its ability to receive federal funds in payment for its products), the supplier entered into a DPA with the government. Under the terms of the DPA, the supplier paid a monetary penalty of $225 million and was required to agree to a Statement of Facts in which it acknowledged suppressing and eliminating competition for pravastatin by coordinating with two other manufacturers. The DPA also barred the supplier from making any public statement in litigation or otherwise contradicting the Statement of Facts.

A few months later, the plaintiff served requests for admission under Federal Rule of Civil Procedure 36 that tracked the language of the Statement of Facts in the DPA. The supplier duly admitted the facts.

The court’s ruling

In opposing summary judgment, the supplier principally asserted (1) that it had entered the DPA under duress, having been forced to negotiate it or else risk mandatory exclusion from federal healthcare programs and (2) that the plaintiff’s requests for admission swept more broadly than what the supplier had conceded in its Statement of Facts.

The court was unpersuaded by either argument. On the duress point, it rejected the notion that the supplier could now claim unfairness in being held to admissions it made only after weighing serious civil and regulatory consequences, treating that position as an attempt to escape the results of its own considered choice. The court likewise found it implausible that the supplier had entered the DPA without carefully evaluating the government’s factual allegations, particularly given that it was already facing related civil suits at the time it negotiated the agreement.

On the scope issue, the court pointed out that given how narrow and short the Statement of Facts was, the plaintiff’s requests could not fairly be characterized as mischaracterizing or selectively distorting what the supplier had admitted.

The bottom line: admissions made under Rule 36 were considered as conclusively established and could not be reopened based on after-the-fact claims of unfairness. Because the supplier’s admissions established an agreement to fix prices — a per se violation of the Sherman Act — the court granted partial summary judgment on liability.

Lessons for companies facing similar situations 

1. Pay close attention to the Statement of Facts accompanying a DPA or similar agreement. A company negotiating a DPA should assume the Statement of Facts will be used in pending or future litigation. Negotiating narrower, more precise factual language on the front end is far more effective than trying to argue for a narrower reading after the fact.

2. Consider ways of achieving a global resolution where practicable. Given the impact of admissions in subsequent civil litigation, it is worth trying to resolve any pending or threatened claims in the context of the resolution with the government. Many prosecutors will be open to such discussions since it can create an efficient mechanism for compensating victims. 

3. Be prepared to live with the choice. Notwithstanding the drawbacks of making potentially damaging admissions, do not lose sight of the fact that a DPA under circumstances like these is ultimately a win in that it avoids a potential corporate death penalty of sorts. Disavowal is never a good idea, as it can lead to the government claiming a violation of the DPA.

4. Preserve the right to withdraw or amend admissions where possible. Where a company later concludes that admissions were broader than intended, it should promptly seek relief under Rule 36(b).

Reed Smith’s antitrust lawyers help our clients to protect their interests across criminal and civil matters, ensuring they have a cohesive defense and helping them to reach favorable outcomes. Please contact us to discuss what this latest judgment means for your company and how we can help you to minimize your risk.