In re: Lamictal Direct Purchas v., 957 F.3d 184

GSK owned the Lamictal patent; Teva filed paragraph IV ANDAs to market generic lamotrigine before patent expiration.
GSK and Teva settled litigation: Teva would launch lamotrigine on July 22, 2008 and GSK agreed not to launch an authorized generic (AG).
Direct Purchasers sued, alleging the no‑AG settlement was an anticompetitive reverse‑payment that inflated generic prices during the exclusivity period.
Defendants argued GSK had a preexisting "Contracting Strategy" (targeted discounts to pharmacies) and Teva preemptively lowered prices, so many purchasers may have paid no overcharge.
The district court certified a class of direct purchasers of Teva’s generic; GSK/Teva appealed certification under Rule 23(f).
The Third Circuit vacated and remanded: the district court failed to perform a rigorous analysis, did not resolve key factual disputes or weigh competing expert reports, and conflated antitrust injury with damages.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Predominance for class certification	Common proof (averages, industry literature, Teva forecasts) shows class‑wide injury	Individualized pricing/discounts and Contracting Strategy create individualized inquiries	Vacated; district court must determine by preponderance whether common proof can establish injury and whether individual issues predominate
Use of averages to prove injury	Averages reasonably estimate but‑for prices across class	Averages mask heterogeneity; many purchasers paid different (often lower) prices	District court erred by accepting averages without resolving factual predicates and expert disputes; remand required
Applicability of Tyson Foods "no reasonable juror" language	Tyson supports a lenient standard for representative evidence at certification	Tyson applies to FLSA sampling context only; Third Circuit precedent requires preponderance standard	Tyson does not control here; Third Circuit requires plaintiffs to prove common proof by a preponderance of the evidence outside FLSA context
Distinction between injury and damages	Averages appropriate for damages calculations across class	Averages used here attempt to prove injury (not just damages), which requires stricter proof	District court conflated injury and damages; must apply stricter predominance standard for injury and a different (more lenient) approach for damages on remand

King Drug Co. of Florence, Inc. v. Smithkline Beecham Corp., 791 F.3d 388 (3d Cir. 2015) (discusses no‑AG agreements and reverse‑payment concerns)
FTC v. Actavis, Inc., 570 U.S. 136 (2013) (Supreme Court recognizing antitrust scrutiny of reverse‑payment settlements)
In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2009) (requires rigorous, preponderance‑based factual analysis at class certification)
Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016) (FLSA representative evidence context; Court limited its "no reasonable juror" language to that context)
In re Modafinil Antitrust Litig., 837 F.3d 238 (3d Cir. 2016) (discusses common proof requirement for antitrust class certification)
Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir. 2012) (Rule 23 analysis requires prediction of how issues will play out and whether proof is common)
Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154 (3d Cir. 2001) (distinguishes proof of injury from calculation of damages)