282 F.R.D. 126
E.D. Pa.2011Background
- Indirect purchasers allege an antitrust/consumer protection scheme by Biovail and GSK to delay generic Wellbutrin XL entry.
- Plaintiffs seek class certification under Rule 23(b)(3) across six states (CA, FL, NV, NY, TN, WI).
- Plaintiffs allege a four-part scheme: sham patent suits, sham FDA Orange Book listing, baseless FDA petition/suit, and anticompetitive agreements.
- Class period begins Nov 14, 2005; ends when generic price reaches steady state (but later clarified to Apr 29, 2011).
- Choice-of-law analysis centers on place of purchase vs. home state for TPPs; court applies Pennsylvania conflict rules.
- Court certifies a part of the indirect-purchaser class and substitutes Aetna for states where in-state generic purchases were not made.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Predominance under Rule 23(b)(3) met for antitrust/CP claims? | Common proof can establish impact across class. | Impact/damages require individual proof due to state-law variation. | Yes; common evidence suffices for predominance. |
| Choice of law and class-state representation? | Place of purchase governs; six states viable with Aetna substitution. | Home state controls; limited class states feasible. | Place-of-purchase law applies; PA choice-of-law framework used; Aetna substituted. |
| Antitrust impact for TPPs that did not purchase generics? | Substitution/formulary effects show impact without generics. | No proof of impact without generic purchases. | Cannot show class-wide impact for those without generic purchases. |
| Direct-to-consumer advertising and class certification? | Advertising does not defeat class-wide impact. | Advertising could dilute class-wide damages. | Not a bar to certification; impact remains demonstrable class-wide. |
| Damages methodology for class-wide relief? | Yardstick-based damages can estimate class-wide overcharges. | Averages may mask individual variation; not reliable. | Class-wide damages methodology acceptable and reliable. |
Key Cases Cited
- In re Warfarin Sodium Antitrust Litigation, 391 F.3d 516 (3d Cir. 2004) (liability proof can rely on common evidence for class-wide claims)
- In re Cardizem CD Antitrust Litigation, 200 F.R.D. 326 (E.D. Mich. 2001) (pass-through not strictly required to prove impact)
- Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3d Cir. 2008) (rigorous Rule 23 analysis; common proof must predominate)
- Amchem Products, Inc. v. Windsor, 521 U.S. 591 (Supreme Court 1997) (requirements for class certification; predominance/superiority)
- In re Relafen Antitrust Litigation, 221 F.R.D. 260 (D. Mass. 2004) (location of injury/purchases as key in choice of law for TPPs)