296 F.R.D. 47
D. Mass.2013Background
- Multidistrict putative class action against AstraZeneca, Ranbaxy, Teva, and Dr. Reddy’s for alleged antitrust violations involving Nexium.
- Putative Direct Purchaser class includes wholesalers/retailers who bought Nexium brand from AstraZeneca and will buy generic Nexium from other Generic Defendants.
- Court addressed motion for class certification under Rules 23(a) and (b)(3).
- Court previously certified End-Payors; same analysis is applied to Direct Purchasers.
- Key issues include numerosity, adequacy, predominance, damages, and superiority; court grants class certification.
- Class size remains 24–29 members per the court’s calculation, with assignees ASC and Meijer allowed as class representatives.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Numerosity under Rule 23(a)(1) satisfied? | Direct Purchasers are numerous enough (24–29) given dispersion and impracticability of joinder. | Class size below 40 raises doubts on numerosity. | Numerosity satisfied; class size acceptable with non-numeric factors considered. |
| Adequacy under Rule 23(a)(4) | Assignees ASC and Meijer can represent the class and share interests. | Assignments may not be adequate representatives. | ASC and Meijer properly included as class representatives; adequacy satisfied. |
| Predominance under Rule 23(b)(3) | Common antitrust impact and damages theory (overcharges) predominate; common damages model viable. | Variations in price, discounts, and switching undermine common damages. | Predominance satisfied; common impact and damages model found viable for class treatment. |
| Common proof of damages and aggregate calculation | Aggregate damages permissible; two pre-defined but-for dates provide class-wide damages framework. | Individualized damages questions threaten class viability; risks of uninjured members. | Aggregate damages permissible; damages methodology acceptable at certification stage. |
| Superiority of class treatment | Consolidated liability theory and impracticability of complete joinder favor class action. | Damages concentrated among few large members; individual suits feasible. | Class treatment superior to other methods; appropriate under Rule 23(b)(3). |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (U.S. 2011) (requires rigorous analysis; common questions must predominate not merits)
- In re Relafen Antitrust Litig., 360 F. Supp. 2d 166 (D. Mass. 2005) (assignees can sue; common proof of injury improves predominance)
- Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481 (U.S. 1968) (overcharge theory; full recovery allowed to direct purchasers)
- Illinois Brick Co. v. Illinois, 431 U.S. 720 (U.S. 1977) (direct-purchaser recovery principle; no pass-through defense to bar damages)
- In re Neurontin Antitrust Litig., 2011 WL 286118 (D.N.J. 2011) (rigorous analysis for common damages; class certification standards)
- In re K-Dur Antitrust Litig., 686 F.3d 197 (3d Cir. 2012) (affirmed viable common damages approach in antitrust class)
- Comcast Corp. v. Behrend, 133 S. Ct. 1426 (U.S. 2013) (limits on class damages proofs; requires viable common damages model)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (U.S. 1997) (class certification standards; need for cohesive class questions)