In ongoing multidistrict antitrust litigation alleging price-fixing by numerous generic drug manufacturers, a district judge in the Eastern District of Pennsylvania issued a significant opinion on July 27, 2026 with direct implications for any company that has entered or may enter into a Deferred Prosecution Agreement (“DPA”) with the Department of Justice (“DOJ”).
The key takeaway: in civil litigation following a criminal resolution, the statement of facts included in a DPA, including admissions of criminal conduct, are binding on the defendant and, when admitted in response to Requests for Admissions (RFAs), can be used to conclusively establish liability in the civil case. The case, Humana Inc. v. Actavis Elizabeth LLC, et al. (part of In re Generic Pharmaceuticals Pricing Antitrust Litigation), 18-CV-03299 (EDPA July 27, 2026), reinforces the importance of carefully scrutinizing any Statement of Facts a company admits to in a DPA (or non-prosecution agreement, NPA) before signing. It also serves as a reminder of the potential costs that parties must weigh when deciding whether to resolve a criminal investigation this way.
Background: Parallel Criminal and Civil Matters
While facing civil antitrust claims in the MDL, Teva Pharmaceuticals was also the subject of a DOJ Antitrust Division investigation for suspected violations of the Sherman Antitrust Act. On August 25, 2020, the United States indicted Teva for three Sherman Act violations, charging Teva with conspiring to suppress and eliminate competition with Glenmark Pharmaceuticals, Apotex Corp., Taro Pharmaceuticals, Sandoz, and others by agreeing to increase and maintain the prices of pravastatin and other generic drugs.
Three years later, on August 21, 2023, Teva entered into a DPA with the DOJ, under which the government agreed to defer prosecution for three years and to dismiss the charges if Teva fully complied with the agreement’s terms. The Teva DPA attached a Statement of Facts, including that Teva had suppressed and eliminated competition by agreeing with other drug makers not to bid on contracts to supply a particular generic drug to a national pharmacy. The DPA also prohibited Teva from making “any public statement, in litigation or otherwise, contradicting the acceptance of responsibility” set forth in the DPA and Statement of Facts.
The Opinion: Using the DPA to Establish a Civil Antitrust Violation
In February 2024, Teva responded to RFAs in the Generics MDL Under Federal Rule of Civil Procedure 36. In its response, Teva admitted statements quoting the DPA and its Statement of Facts. Plaintiffs later sought partial summary judgment on their price-fixing claim in March 2026, relying on Teva’s admissions to establish the violation element of their Section 1 Sherman Act claim.
In its summary judgment briefing, Teva argued that its Rule 36 admissions were contradicted by record evidence, creating a genuine dispute about material facts that precluded summary judgment. The court disagreed, explaining that Teva’s admissions had “conclusive effect” for summary judgment purposes and that it was too late to challenge the admissions. Because “Teva never moved to strike the RFAs as improper or contest them in any way, nor did it seek to amend or withdraw its admissions,” Teva waived any objection to use of the RFA. The court thus found the admissions to be conclusively established and sufficient to grant partial summary judgment in plaintiffs’ favor on their Section 1 per se price-fixing claim.
Notably, the court also rejected an alternative unfairness argument made by Teva. Teva argued that it was unfair to allow the DPA to conclusively establish liability because Teva “disagreed with the DOJ regarding the conduct alleged in the indictment” and was “forced” into signing the DPA because, if it did not sign, Teva would “risk mandatory debarment from all federal healthcare programs, among other consequences.” In pointed language, the court characterized this argument as “literal whining” and “ridiculous,” admonishing Teva that it had made the decision to avoid trial and had to stand by that decision.
Takeaways
- Admitting DPA facts through an RFA can establish civil liability. Civil plaintiffs can use Rule 36 requests to lock in admissions made by a defendant directly in a DPA’s Statement of Facts, converting those facts into binding admissions that establish liability in a civil antitrust case.
- The window to contest an RFA closes quickly. In matters where there is a parallel or preceding criminal action, defense counsel should be on high alert for RFAs that address facts admitted in DPAs (or NPAs). A defendant seeking to challenge the scope, accuracy, or propriety of a plaintiff’s RFAs must do so promptly by either (1) moving to strike the requests as improper or (2) seeking to amend or withdraw its responses under Rule 36(b). Waiting until summary judgment is too late. And the existence of contradictory record evidence will not save a defendant from its own prior Rule 36 admissions.
- DPA negotiations should account for civil litigation exposure. Companies negotiating DPAs with the DOJ should bear in mind that the scope of the Statement of Facts—every admission and factual recitation—can and will be used against them in subsequent civil proceedings. The breadth of admissions in the Statement of Facts is not merely a criminal matter; it can directly determine the contours of civil liability.
Please reach out to the antitrust or white collar teams at Sheppard if you have any questions about this opinion or how it might impact your business going forward.