Article

Teva MDL Loss Shows DPAs Can Return To Haunt Civil Suits

Law360

Written by Ann M. O'Brien, T.J. Benedict, Lindsey O. Collins

September 4, 2026Estimated Read Time: 2 mins

Key Takeaways

DPA statements of fact can become dispositive in later civil litigation. When DPA facts are admitted through Rule 36 requests for admission, they can conclusively establish elements of liability and support summary judgment.
Rule 36 timing is critical — waiting until summary judgment is too late. Parties must promptly move to strike improper RFAs or seek to amend/withdraw admissions under Rule 36(b). Contradictory record evidence will not undo binding admissions.
DPA negotiations should account for civil exposure, not just criminal resolution. Admissions that may seem acceptable in a criminal context can still drive civil liability (including under broader “rule of reason” theories) and increase damages exposure through treble damages and fee-shifting.

A recent decision in the In re Generic Pharmaceuticals Pricing Antitrust Litigation MDL underscores how deferred prosecution agreements can create significant downstream exposure in civil cases. In Humana Inc. v. Actavis Elizabeth LLC, the U.S. District Court for the Eastern District of Pennsylvania held that facts admitted in Teva Pharmaceuticals USA Inc.’s DOJ deferred prosecution agreement — and later admitted in response to Rule 36 requests for admission — had conclusive effect in the MDL and could be used to establish civil antitrust liability at summary judgment.

Teva entered a DPA in 2023 after being indicted for alleged Sherman Act violations. The DPA included a detailed statement of facts and a restriction against contradicting the acceptance of responsibility. In the civil MDL, Teva admitted requests for admission quoting those DPA facts. Plaintiffs later relied on those admissions to seek partial summary judgment on a per se Section 1 price-fixing claim. Teva argued the admissions were contradicted by other record evidence and that using the DPA was unfair given the pressure to avoid debarment-related consequences. The court rejected both arguments, emphasizing that Rule 36 admissions are binding unless timely challenged or withdrawn and criticizing Teva’s attempt to revisit its strategic decision to resolve the criminal case.

The decision serves as a reminder that the factual narrative in a DPA can materially shape later civil litigation, especially in antitrust matters where private plaintiffs may seek treble damages and attorneys’ fees.

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Teva MDL Loss Shows DPAs Can Return To Haunt Civil Suits

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