District Of New Jersey Denies Class Certification Based On Presence Of Uninjured Class Members In Proposed Class
On October 30, 2018, Judge Madeline C. Arleo of the United States District Court for the District of New Jersey declined to certify a proposed consumer class in litigation accusing a pharmaceutical manufacturer (the “Company”) of maintaining a monopoly for two of its drugs. Judge Arleo held that, under Federal Rule of Civil Procedure 23, a class cannot be certified when a non-trivial portion of class members were not injured, absent some “reasonable and workable plan” to segregate those members from the rest of the class. In re Thalomid and Revlimid Antitrust Litig., No. 2:14-cv-06997, at *26, *29 (D.N.J. Oct. 30, 2018) (“Opinion”). In so holding, Judge Arleo relied heavily on the First Circuit’s recent decision in In re Asacol Antitrust Litig., which reversed a district court’s approval of a class on similar grounds. No. 18-1065, 2018 WL 4958856, at *11 (1st Cir. Oct. 15, 2018); https://www.lit-antitrust.shearman.com/first-circuit-reverses-class-certification-based.
First Circuit Reverses Class Certification Based On Presence Of Uninjured Class Members In Certified Class
On October 15, 2018, the United Stated Court of Appeals for the First Circuit, in an opinion by Judge William J. Kayatta, reversed a district court’s certification of a class of indirect purchasers of the drug Asacol, holding that, under Federal Rule of Civil Procedure 23, a class cannot be certified when a non-trivial portion of class members were not injured in fact, absent some “reasonable and workable plan” to segregate those members from the rest of the class. In re Asacol Antitrust Litig., No. 18-1065, 2018 WL 4958856, at *11 (1st Cir. Oct. 15, 2018).
Georgia District Court Denies Class Certification To Plaintiffs Alleging Conspiracy To Delay Release of Generic Versions Of Testosterone Replacement Drug
On July 16, 2018, in the latest development in the litigation over the “reverse payment” settlements relating to the pharmaceutical testosterone replacement AndroGel that the Supreme Court addressed in FTC v. Actavis, Inc., 570 U.S. 136 (2013), Judge Thomas W. Thrash, Jr. of the United States District Court for the Northern District of Georgia denied class certification to a proposed class of direct purchaser plaintiffs. In re AndroGel Antitrust Litigation (No. II), No. 2084, 2018 WL 3424612 (N.D. Ga. July 15, 2018).
U.S. District Court For The Northern District Of California Rejects Class Certification Of Indirect Purchasers In Lithium Ion Battery Price-Fixing Litigation Based On Plaintiffs’ Failure To Address Focal Point Pricing
On March 5, 2018, Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California denied class certification for a group of indirect purchasers alleging price fixing in the sale of lithium batteries, holding that the plaintiffs failed to demonstrate that they had a reliable method of proving pass-through of the alleged overcharges on a class-wide basis. In so holding, the Court relied primarily on the plaintiffs’ expert’s failure to account for the effects of “focal point pricing,” the practice of pricing consumer products at certain attractive retail price points, for example, $799 or $1299.
Southern District Of New York Denies Certification To Two Putative Classes And Grants Partial Certification To A Third In LIBOR Rate Manipulation Litigation
On February 28, 2018, Judge Naomi Reice Buchwald of the Southern District of New York denied class certification to two proposed classes in the LIBOR rate manipulation litigation, while granting partial certification to a third class. In re LIBOR-Based Fin. Instruments Antitrust Litig., No 1:11-cv-02613-NRB (S.D.N.Y. Feb. 28, 2018). At issue in this thorough 366-page decision were three proposed classes: (1) the “exchange-based” class, (2) the “lender” class, and (3) the “over-the-counter” or “OTC” class, all seeking to recover damages based on alleged manipulation of the London Inter-bank Offered Rate (“LIBOR”).
District Of Massachusetts Certifies Direct And Indirect Purchaser Classes In Alleged Pay-For-Delay Action Relating To Solodyn
On October 16, 2017, Judge Denise J. Casper of the United States District Court for the District of Massachusetts granted class certification to two classes of purchasers allegedly injured by a pay-for-delay scheme relating to prescription drug Solodyn: a Direct Purchaser Plaintiff class (“DPPs”) and an End-Payor Plaintiff class (“EPPs”). In Re Solodyn (Minocycline Hydrochloride) Antitrust Litig., No. 14-md-02503 (D. Mass. Oct. 16, 2017). In certifying the DPP class, the Court rejected the argument that affiliated corporate entities should be consolidated in evaluating the numerosity requirement of Federal Rule of Civil Procedure 23(a). In certifying both classes, the Court accepted the plaintiffs’ experts’ proffered methodologies to establish common or class-wide impact as adequate for Rule 23 purposes over a variety of defense challenges.