Overview


McDermott Will & Emery’s Litigation and SALT teams have successfully challenged New York’s Opioid Stewardship Act and saved the pharmaceutical industry $600 million.

On Wednesday, December 19, 2018, Judge Katherine Polk Failla of the Southern District of New York ruled in favor of McDermott’s client, the Healthcare Distribution Alliance, the national trade association for pharmaceutical distributors. Judge Failla granted summary judgment and enjoined enforcement of the New York law, which imposed a $600 million surcharge on manufacturers and distributors of opioid products and barred them from passing the surcharge to purchasers. The first $100 million installment was due on January 1, 2019.

Judge Failla agreed with McDermott’s arguments that the Tax Injunction Act did not bar federal jurisdiction over any part of the suit and that the Act’s cost-pass-through prohibition violated the dormant Commerce Clause.  She further agreed with McDermott that the cost-pass-through prohibition was not severable from the rest of the Act, including the $600 million surcharge.

The McDermott team was led by Miller Baker and Andrew Kratenstein of the Litigation Practice Group and Stephen Kranz of the State and Local Tax Practice Group.

About McDermott


McDermott Will & Emery is a premier international law firm with a diversified business practice. Numbering more than 1,000 lawyers, we have offices in Boston, Brussels, Chicago, Dallas, Düsseldorf, Frankfurt, Houston, London, Los Angeles, Miami, Milan, Munich, New York, Orange County, Paris, Seoul, San Francisco, Silicon Valley and Washington, DC. Further extending our reach into Asia, we have a strategic alliance with MWE China Law Offices in Shanghai.

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