The judge denied class certification in this pharmaceutical pay-for-delay multidistrict litigation.
Retained by Munger Tolles & Olson and by Kirkland & Ellis
A U.S. district judge declined to certify a class of end-payor plaintiffs (EPPs) in this pay-for-delay case. Defense counsel for the brand manufacturer, AbbVie, and the generic manufacturer, Teva, retained Cornerstone Research to support James Hughes of Bates College.
A class of EPPs alleged that AbbVie compensated Teva to delay entering the market with a competing generic version of the brand name drug. The plaintiffs claimed this was an anticompetitive patent settlement agreement that caused consumers to pay inflated prices for the cholesterol drug, Niaspan.
Professor Hughes submitted an expert report in opposition to class certification. He rebutted the plaintiffs’ expert and opined that EPPs do not provide common evidence of antitrust injury.
Professor Hughes also showed that individualized inquiry was necessary to determine whether any such injury occurred and the extent of injury. Many groups of consumers may have been uninjured, including brand-loyal consumers, those who benefited from copayment assistance programs or received free samples, and consumers whose copayments for brand and generic would have been the same.
A U.S. district judge for the Eastern District of Pennsylvania declined to certify the class of EPPs. His conclusion was based on the challenges of identifying class members, the lack of common evidence of antitrust injury, and variations in applicable state laws. In his ruling on the class, the judge stated “EPPs have not satisfied their burden of establishing ascertainability, predominance, or superiority by a preponderance of the evidence.”
Professor Hughes’s expert report is cited throughout the court’s decision. The judge cited Professor Hughes’s conclusion that, at best, plaintiffs’ expert “could establish the average ‘overcharge’ per prescription paid by the class. But this average overcharge simply does not speak to whether any or all individual class members were injured.”