In re Actiq Sales and Marketing Practices Litigation

Cornerstone Research worked with three experts to address class certification and damages issues.

Retained by Morgan Lewis & Bockius

Counsel for Cephalon Inc., a subsidiary of Teva Pharmaceutical Industries Ltd., retained Cornerstone Research to analyze class certification and damages issues relating to the alleged off-label marketing of Actiq, a painkiller approved for the management of breakthrough cancer pain. A purported class of third-party payers (TPPs) claimed that Cephalon unjustly enriched itself by marketing Actiq for non-approved indications in order to increase prescription sales, and that they were damaged by Cephalon’s actions.

Cornerstone Research worked with three experts to address class certification and damages issues: Professor W. David Bradford of the University of Georgia; Professor Pradeep K. Chintagunta of the University of Chicago Booth School of Business; and Ms. Christine M. Hammer, CPA, senior advisor at Cornerstone Research.

The court denied certification of the proposed class.

A key question in this case was whether issues common to all class members predominated over issues affecting individual TPPs. TPPs each made their own coverage decisions and set their own reimbursement policies for Actiq. Professor Bradford explained that TPPs had a number of methods by which they could and did influence and monitor the prescriptions for which they reimbursed in order to manage their costs for Actiq. He concluded that individualized inquiry would be required to establish that class members were harmed by Cephalon’s alleged actions.

Professor Chintagunta showed that physician prescribing behavior is influenced by a number of different factors and that there is diversity in how physicians respond to pharmaceutical marketing; consequently, because each TPP reimbursed for prescriptions prescribed by different physicians, individualized inquiry would be required to demonstrate the impact of the alleged off-label marketing.

Ms. Hammer analyzed the plaintiffs’ proposed damages model to estimate the alleged unjust enrichment.

Judge Petrese B. Tucker of the U.S. District Court for the Eastern District of Pennsylvania found that individual issues in this case predominated over common ones, and that individualized inquiry would be required to determine whether a particular prescription was unjust.

The court denied certification of the proposed class.