In re Flonase Antitrust Litigation
284 F.R.D. 207
E.D. Pa.2012Background
- Indirect Purchasers allege GSK delayed generic FP entry via four tactics: FDA bioequivalence influence, frivolous citizen petitions, GP monograph submission to USP, and NDA supplements expanding delay.
- Class action seeks certification of state-law monopolization, UDTP, and unjust enrichment claims on behalf of consumers and third-party payors across multiple states.
- Court narrowed, but certified a class for Rule 23(b)(3) with a August 2004–March 2009 window, limited to states where at least one named plaintiff demonstrated injury (Arizona, Florida, Massachusetts, Wisconsin).
- Court rejected broader class definitions that included brand-loyal consumers and those who never purchased generic FP, excluding certain uninsured and TPPs with no generic purchases from certification.
- Choice-of-law adopted: claims to be governed by purchase-state laws rather than home-state laws; standing determinations limited class membership to states with injury shown by named plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Predominance under Rule 23(b)(3) | Indirect Purchasers contend common proof of impact. | GSK argues individualized inquiries predominate. | Predominance shown with common evidence for liability and impact. |
| Standing/curation of class scope | Named plaintiffs establish standing in purchase states; class should include all injury-bearing members. | Standing limits and state-by-state injury prevent broader certification. | Class narrowed to states with injury; others excluded. |
| Choice of law for class claims | Purchase-state laws should apply for damages and liability. | Home-state laws should govern. | Purchase-state laws applied. |
| Daubert admissibility at certification | Expert methods appropriate for class-wide proof. | Daubert scrutiny may be required. | Daubert motions denied; experts admitted for certification. |
Key Cases Cited
- Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) (rigorous Rule 23 analysis required; resolve disputes relevant to certification)
- Behrend v. Comcast Corp., 655 F.3d 182 (3d Cir. 2011) (damages methodology must be used to support class certification)
- In re Wellbutrin XL Antitrust Litig., 282 F.R.D. 126 (E.D. Pa. 2011) (damages and class considerations in pharmaceutical context)
- In re Cardizem CD Antitrust Litig., 200 F.R.D. 326 (E.D. Mich. 2001) (class-wide damages approach acceptable; pass-through not required)
- Kohen v. Pacific Inv. Mgmt. Co. LLC, 571 F.3d 672 (7th Cir. 2009) (uninjured class members do not defeat certification if widespread injury shown)
- Grams v. Boss, 294 N.W.2d 473 (Wis. 1980) (statutory framework tied to antitrust concepts)