Daniel C. Simons is senior counsel in the Antitrust and Consumer
Protection unit of Berger & Montague. He concentrates a
significant percentage of his practice on complex antitrust
litigation, with a focus on anticompetitive arrangements in the
pharmaceutical industry. Mr. Simons has been at the forefront
of the efforts to curb "pay-for-delay" agreements, whereby brand
companies compensate generic rivals to forestall the entry of lower
priced generic equivalents. His practice has led to
appearances in district and appellate courts across the
Mr. Simons's significant representations have included:
- In re Modafinil Antitrust Litigation, No. 06-1797 (E.D.
Pa.), in which Mr. Simons represents direct purchasers of the drug
Provigil, suing the brand company for fraudulently obtaining its
patents on the drug and entering into agreements with its four
generic rivals to delay competition.
- In re Androgel Antitrust Litigation (No. II), MDL No. 2084
(N.D. Ga.). This private antitrust suit parallels the
precedent-setting FTC v. Actavis case, which held that
pay-for-delay agreements are not immune from the antitrust laws and
must be examined under the antitrust "rule of reason." 133 S.
Ct. 2223 (2013). Mr. Simons was heavily involved in all
aspects of appellate litigation, including the United States
- In re K-Dur Antitrust Litigation, 686 F.3d 197 (3d Cir. 2012),
where the Third Circuit held that pay-for-delay agreements are
subject antitrust scrutiny, which helped to trigger the eventual
review of the issue by the Supreme Court. The Court of
Appeals also made notable holdings concerning class certification
in delayed generic entry cases.
- In re DDAVP Direct Purchaser Antitrust Litigation, 585 F.3d 677
(2d Cir. 2009), the first appellate decision directly
addressing the issue of antitrust standing for claims relating to
fraudulently obtained patents. The case later settled on
terms favorable to the direct purchaser class.
- In re Nifedipine Antitrust Litigation, MDL No. 1515
(D.D.C.), in which Mr. Simons was one of the principal attorneys
responsible for winning certification of a class of direct
purchasers of generic versions of the antihypertensive drug Adalat
CC, and for successfully defending that certification before the
United States Court of Appeals. In re Nifedipine
Antitrust Litigation, 246 F.R.D. 365 (D.D.C. 2007), Rule 23(f)
appeal denied, 2009 U.S. App. LEXIS 3643 (D.C. Cir. Feb. 23,
2009). The case was resolved with settlements on behalf of
the class worth $35 million.
- In re Relafen Antitrust Litigation., Civ. A. No. 01-12239-WGY
(D. Mass.), in which Mr. Simons was a member of the team of
attorneys representing a class of direct purchasers of the
prescription anti-inflammatory drug Relafen. A $175 million
settlement was obtained on behalf of the class.
- Congregation Kol Ami v. Abington Township, Civ. A. No. 01-1919
(E.D. Pa.), in which Mr. Simons represented a non-profit in a civil
rights challenge. The case presented several questions of
first impression under the Federal and Pennsylvania Constitutions,
the Pennsylvania Religious Freedom Restoration Act, and the
Religious Land Use and Institutionalized Persons Act.