Opinion and Order No. 33
(Motion for Interlocutory Appeal of Opinion and Order No. 19)
(Objections to Magistrate Judge’s Rulings Regarding Election of Good Faith/Advice-of-Counsel Defense)
(Direct Purchaser Motion for Class Certification)
This case consolidates for pre-trial purposes a number of antitrust actions involving disputes among the various parties over the propriety of the manufacture, use, sale or allegedly anticompetitive conduct related to the use and sale of buspirone, a drug used to treat anxiety. The common defendant or counterclaim defendant in these actions is Bristol-Myers Squibb Company (“Bristol-Myers” or “BMS”), a company that obtained a patent covering the use of buspirone for the treatment of anxiety in 1980 (the “ ’763 Patent”) and that has been selling the product since 1986, when the Food and Drug Administration (the “FDA”) approved the drug for human use. The plaintiffs are, variously, generic drug makers who seek or have sought to sell generic buspirone, direct purchasers of buspirone products, end-pay-ors who have purchased buspirone, consumer protection organizations, or their representatives, and a number of States. These plaintiffs (the “antitrust plaintiffs”) have consolidated their claims into six Amended Complaints or Pleadings (the “Complaints”).
The Complaints assert a number of claims, all of which arise out of two separate sets of circumstances. First, some of the plaintiffs or counterclaim plaintiffs, including the direct purchaser plaintiffs, allege that Bristol-Myers attempted to extend and/or extended an unlawful monopoly over buspirone products for use in the treatment of anxiety, and also entered into a conspiracy to restrain trade in this market, thereby violating Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2, by settling a patent infringement suit with Danbury Pharmacal, Inc. and its affiliate Schein Pharmaceuticals, Inc. (“Schein”) in 1994. In that litigation, Bristol-Myers had argued that Schein would infringe the ’763 Patent by manufacturing and selling generic buspirone tablets before the ’763 Patent expired. The plaintiffs who raise these claims allege that BMS’s settlement was a sham used to cover up an unlawful anticompetitive arrangement under which Schein agreed to stay out of the buspirone market and help maintain a public perception that the ’763 Patent was valid in return for $72.5 million, even though both parties knew that the '763 Patent was not valid.
Second, all of the Complaints allege that Bristol-Myers attempted to extend and/or
There are currently several motions pending before the Court. BMS moves pursuant to 28 U.S.C. § 1292(b) for an order certifying for interlocutory appeal the Court’s previous Opinion and Order No. 19, In re Buspirone Patent/Antitrust Litig.,
I.
The Court has already set forth a number of the relevant facts in this case in two previous Opinions and Orders, familiarity with which is assumed. See In re Buspirone Patent/Antitrust Litig.,
The antitrust actions in this case were originally consolidated along with a number of patent infringement actions that BMS had brought against its generic competitors, which argued that the generic competitors had infringed the ’365 Patent by filing Abbreviated New Drug Applications (“ANDA’s”) with the FDA for generic buspi-
On February 14, 2002, the Court also issued Opinion and Order No. 19, which held in relevant part that BMS was not entitled to Noerr-Pennington immunity for its actions in listing the ’365 Patent and bringing its subsequent patent infringement actions so as to invoke an automatic thirty-month stay of the FDA’s approval of ANDA’s by generic competitors. This ruling did not finally dispose of any of the claims in any of the actions consolidated in this case, and BMS did not move for an interlocutory appeal of the decision at that time.
On April 16, 2002, the plaintiffs filed a motion to compel BMS to elect whether it would raise a good faith/advice-of-counsel defense to the plaintiffs’ antitrust claims. The antitrust plaintiffs argued that such a defense would constitute a waiver of some of BMS’s attorney client and/or work product privileges, and that the plaintiffs needed reasonable time for discovery into any such issues that might be raised. The plaintiffs had already filed a motion to pierce the attorney-client privilege under the crime-fraud exception to the privilege in light of some of BMS’s allegedly fraudulent conduct in this case. On May 24, 2002, while these issues were being disputed, and more than three months after the Court had issued Opinion and Order No. 19, BMS filed a motion for an order certifying Opinion and Order No. 19 for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
On June 26, 2002, the Magistrate Judge ruled that BMS must elect whether it will raise a good faith/advice-of-counsel defense by August 1, 2002. The Magistrate Judge rejected a number of arguments that BMS had made to limit the scope of any waiver that would be associated with such a defense in a number of ways, prior to any assertion of a defense, and indicated that it would decide the motion relating to the crime-fraud exception after BMS made its election. See Report and Recommendation dated June 26, 2002, at 14 n. 3. BMS timely filed its present objections.
II.
BMS moves pursuant to 28 U.S.C. § 1292(b) for an order certifying for interlocutory appeal this Court’s Opinion and Order No. 19, which was filed on February 14, 2002. The Opinion and Order denied BMS’s motion to dismiss the plaintiffs’ antitrust and related state law claims on Noerr-Pennington grounds.
Section 1292(b) provides that a district court may certify an interlocutory order for appeal if it is of the opinion that (1) the order “involves a controlling question of law”; (2) “as to which there is substantial ground for difference of opinion,” and (3) “that an immediate appeal of the order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). The determination of whether § 1292(b) certification is appropriate under these standards lies within the discretion of the district court. See, e.g.,
Interlocutory appeals under Section 1292(b) are an exception to the general policy against piecemeal appellate review embodied in the final judgment rule, and only “exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” Coopers & Lybrand v. Livesay,
Finally, the institutional efficiency of the federal court system is among the chief concerns underlying § 1292(b). The efficiency of both the district court and the appellate court are to be considered, and the benefit to the district court of avoiding unnecessary trial time must be weighed against the inefficiency of having the relevant Court of Appeals hear multiple appeals in the same ease. See Harriscom Svenska AB v. Harris Corp.,
In this case, BMS waited over three months from the issuance of the order in question to file its motion for an interlocutory appeal. The Court had issued two substantial Opinions and Orders on the same day, and BMS immediately sought to appeal Opinion and Order No. 18, while simultaneously foregoing any attempt to appeal Opinion and Order No. 19. BMS has offered no reasonable justification for its delay. BMS also filed its present motion for an interlocutory appeal shortly after the plaintiffs moved to compel BMS to elect whether it would raise a good faith/advice-of-counsel defense, which would require BMS to choose whether to waive the attorney-client and/or work product privilege relating to some materials placed at issue by such a defense. BMS has argued that it should not be forced to make such an election until after an interlocutory appeal of Opinion and Order No. 19 has been decided. In these circumstances, it is difficult, despite BMS’s arguments to the contrary, to consider BMS’s late motion for an interlocutory appeal as anything other than an attempt to forestall BMS’s inevitable need to decide whether it will assert a good faith/advice-of-eounsel defense. In any event, the Court would not exercise its discretion to certify an interlocutory appeal in view of BMS’s inexcusable or, at best, unexplained delay. BMS’s delay effectively prevented the requested interlocutory appeal from being considered at the same time as its appeal from Opinion and Order No. 18, which has already been fully briefed on appeal.
BMS has also failed to meet the three prerequisites to certification of an interlocutory appeal. BMS argues for certification based on its contention that Opinion and Order No. 19 allegedly decided a number of issues of first impression, which, BMS argues, a reviewing court might decide differently. In particular, BMS identifies the questions whether listing a patent in the Orange Book is petitioning activity for Noerr-Pennington purposes and whether there could be a Walker Process exception in the context of listing activity for the intentionally fraudulent listing of a patent.
However, the Court of Appeals has held that “the mere presence of a disputed issue that is a question of first impression, standing alone, is insufficient to demonstrate a substantial ground for difference of opinion.” Flor,
BMS tries to argue that this case is different from others that have been decided, but, in these circumstances, BMS has not provided sufficient substance to its disagreements with this Court’s rulings to establish that there is a substantial ground for difference of opinion over the issues decided. See, e.g., Wausau Bus. Ins. Co. v. Turner Constr. Co.,
BMS also argues that there are substantial grounds for difference of opinion over whether it was objectively baseless for BMS to have claimed that the ’365 Patent covers uses of buspirone in its listing of the ’365 Patent and its subsequent patent infringement actions. This ruling, however, involved the application of well-settled legal standards for
In any event, BMS has failed to show that the issues of law that it identifies as the basis for this motion are “controlling” in the relevant sense. While “the resolution of an issue need not necessarily terminate an action” in order to fall within the “controlling question of law” prong of 28 U.S.C. § 1292(b), “it is clear that a question of law is ‘controlling’ if reversal of the district court’s order would terminate the action.” Klinghoffer,
Indeed, an interlocutory appeal would likely disrupt the advancement of this litigation. The end of discovery is in sight, and it is inevitable that BMS would seek some delay if, as is likely, an appeal was not fully decided by the conclusion of discovery. Moreover, at this point, none of the central claims in the antitrust actions have been decided on the merits, and a decision on the merits in favor of BMS would moot the need for any appeal or at least provide the relevant Court of Appeals with a fuller record on which to examine the merits of any appeal. The Court of Appeals should have the benefit of hearing any appeals in this case with the aid of the full record relating to the parties’ claims, and should not have to delve into the complex facts and issues in this case in a piecemeal fashion. See Able v. United States,
BMS argues that an interlocutory appeal would not cause any material delays because such an appeal could be heard in an expedited fashion by the same panel that is currently reviewing BMS’s appeal of Opinion and Order No. 18. However, there is no assurance that BMS could obtain an expedited interlocutory appeal from the Court of Appeals for the Federal Circuit, or could have these appeals heard by the same panel. BMS’s three-month delay in seeking an interlocutory appeal has helped to assure that any interlocutory appeal would be on a different track from the currently pending appeal.
Moreover, as the parties agreed at oral argument, there are substantial jurisdictional questions concerning where an appeal of
For all of the above reasons, BMS’s motion for certification of an interlocutory appeal is denied.
III.
BMS raises objections to a number of the Magistrate Judge’s rulings dated June 26, 2002 relating to discovery disputes in this case, and, in particular, to the Magistrate Judge’s decisions (i) declining to rule that certain broad classes of documents would necessarily fall outside the scope of any waiver that BMS might make by raising a good faith/advice-of-counsel defense in this case, and (ii) requiring BMS to elect by August 1, 2002 whether it would raise any such defense in order to allow the plaintiffs reasonable time for discovery into the facts relating to any such defense. When considering objections to an order issued by a Magistrate Judge concerning nondispositive matters such as these, the Court “shall modify or set aside any portion of the magistrate judge’s order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636(b)(1)(A); Thompson v. Keane, No. 95 Civ. 2442,
A.
BMS’s first set of objections, which relate to the Magistrate Judge’s refusal to limit the possible scope of any waiver relating to an adviee-of-counsel defense that BMS may make to exclude certain broad classes of documents, are overruled. BMS has not even raised any advice-of-counsel defense yet, and the scope of any waiver that BMS may make if it elects to raise such a defense will likely depend at least in part upon the scope and kind of defense that BMS makes, if any, and the kind of discovery that would
BMS argues that if it raises an advice-of-counsel defense it should not be deemed to have waived the relevant attorney-client or work product privileges covering any documents that were not communicated to BMS or that were created after certain critical dates, such as the filing of the patent infringement actions. The Magistrate Judge was sensitive to the fact that “discovery of the undisclosed documents of outside counsel should be limited to matters placed at issue by Bristol-Myers’s election of defenses.” Report and Recommendation at 17 n. 4. However, the assertion of a good faith/advice-of-counsel defense would by definition place at issue the subject matter whether BMS in fact acted in good faith and in reasonable reliance on the advice of counsel as claimed in its defense, and a number of un-eommunieated documents or documents created after the patent infringement suits were filed could be relevant to this subject matter. In re Kidder Peabody Secs. Lit.,
It is also clear that BMS cannot in fairness try to tailor an advice-of-counsel defense in an unfairly prejudicial way, so as to provide all the documents relating to the advice of counsel up until a certain arbitrary date, which may tend to support BMS’s positions in this litigation, while categorically excluding any such documents thereafter, which may tend to show that BMS thereafter pursued the challenged conduct in bad faith or against the advice of counsel. Id. at 469 (“[T]he scope of any waiver by virtue of disclosure was to be defined by the so-called ‘fairness doctrine’, which ‘aim[s] to prevent prejudice to a party and distortion of the judicial process that may be caused by the privilege-holder’s selective disclosure during litigation of otherwise privileged information.”) (citing In re von Bulow,
BMS argues that the subject matter that it would place at issue in raising an advice-of-counsel defense relates only to BMS’s state of mind when engaging in the allegedly illicit conduct, and that BMS therefore deserves a ruling that any uncommunicated documents
The Magistrate Judge was also correct that some of the allegedly illicit conduct in this ease spanned into the period in which BMS was prosecuting its patent infringement claims, and that some documents from this period would in fairness likely need to be subject to discovery to test any factual assertions BMS might make in raising an advice-of-counsel defense. There are clearly circumstances in which documents that were not communicated to BMS or were created after the patent infringement actions were filed would be relevant to assessing the factual basis for a reliance-on-counsel defense or to placing the disclosures that were made to BMS into an accurate context. The Magis-trateJudge correctly identified some of these possible circumstances in the decision, and there was nothing clearly erroneous or contrary to law in the decision.
BMS argues that this case is particularly sensitive because, without some assurance that the scope of its waiver would be more limited, the election of an advice-ofeounsel defense could allow for the discovery of some documents that would reveal its strategy in these ongoing litigations. It is not yet clear whether there are any genuine grounds for such a concern. Genuine work product is not ordinarily directly relevant to the facts asserted in making an advice-of-counsel defense. The Supreme Court has also recognized, both in Hickman v. Taylor,
In this case, it cannot be determined whether there is any genuine work product that would be relevant to testing the accuracy of any advice-of-counsel defense that BMS may raise. Those determinations must be made on a particularized basis and not, as BMS attempts to do, by some blanket exclusion. See generally id. at 190-92 (analyzing waiver of work product privilege by applying same fairness standards but indicating a preference for particularized findings explaining the relation of the material to the subject matter waived). Given the large amount of discovery that is being produced in this case, there aré ways of reviewing and screening documents to help decide some of these sensitive privilege and waiver issues, including the appointment of a Special Master, if BMS were to elect a good faith/advice-of-counsel defense. The parties should raise this issue with the Court or the Magistrate Judge if and when the need arises.
B.
BMS also argues that the Magistrate Judge erred in requiring it to elect whether it will assert any good faith or reliance-on-counsel defenses in this case by August 1, 2002. At oral argument, the Court stayed this deadline until August 17, 2002 so that the Court could decide BMS’s objections to this deadline before the election, and the Court extended the deadline again by a sub
The timing and sequence of discovery is a matter over which courts have broad discretion. See, e.g., Gucci Inc. v. Exclusive Imports Int’l, No. 99 Civ. 11490,
For the foregoing reasons, BMS’s objections are overruled.
IV.
The direct purchaser plaintiff Louisiana Wholesale Drug Company (“Louisiana Wholesale”) moves to certify a class consisting of all persons (collectively, the “direct purchasers”) who have directly purchased patented buspirone sold under the brand name Buspar ® from BMS at any time during the period beginning on November 9,1997, in view of the statute of limitations barring prior claims, and ending on March 28, 2001, when Judge Urbina of the District Court for the District of Columbia first issued an injunction allowing generic competitors to begin selling buspirone.
Before certifying a class, the Court must determine that the party seeking certification has satisfied the four prerequisites of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. See, e.g., Marisol A v. Giuliani,
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a). The Court must also find that the party qualifies under one of the three sets of criteria set forth in Rule 23(b)(1), (2), or (3). See Amchem Products, Inc. v. Windsor,
The plaintiff here seeks certification under Rule 23(b)(3), which provides for a class to be maintained where “the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). Rule 23(b)(3) states that:
The matters pertinent to the[se required] findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
Id. If the Court finds both that the requirements of 23(a) have been met, and that the claims fall within the scope of Rule 23(b)(3), the Court may, in its discretion, certify the class. See In re Drexel Burnham Lambert Group, Inc.,
A motion for class certification should not, however, become a mini-trial on the merits. See Eisen v. Carlisle & Jacquelin,
At the same time, the Court must conduct a “rigorous analysis” to determine whether the relevant requirements of Rule 23 have been met. See General Telephone Co. of Southwest v. Falcon,
BMS does not seriously dispute that class certification is appropriate for a class consisting of most of the direct purchasers of Bus-par®. See BMS’s Opp. to Direct Purchaser Class Cert. Mot. at 2 n. 2 (“BMS would not oppose certification of a class consisting solely of small wholesalers, such as [Louisiana Wholesale].”). BMS is correct not to do so. The First Amended Class Action Complaint alleges that BMS violated §§ 1 and 2 of the Sherman Act by monopolizing, attempting to monopolize, and illegally conspiring to restrain trade in the market for buspirone by entering into the Schein Settlement Agreement and later listing the ’365 Patent and instigating and prosecuting patent infringement actions against generic competitors on the basis of this patent. (See First Am. Compl. 1111110-40.) The plaintiff Louisiana Wholesale contends that these purported violations resulted in an overcharge for buspi-rone, which thereby injured all of the direct purchasers in the proposed class. (See First Am. Compl. KU105-08.) The Complaint alleges that the direct purchasers are entitled to treble damages for these overcharges.
With regard to the basic Rule 23(a) requirements, Louisiana Wholesale has presented uncontradieted evidence that its proposed class contains possibly over a hundred members, which is clearly sufficient to meet Rule 23(a)’s numerosity requirement. See, e.g., Consolidated Rail Corp. v. Town of Hyde Park,
There are also numerous common questions of fact and law at issue among the members of the proposed class concerning whether BMS engaged in the anticompetitive conduct alleged, the scope of this conduct, and whether this conduct resulted in any overcharges in the market for buspirone. See, e.g. In re NASDAQ Market-Makers Antitrust Litig.,
The requirement of typicality is also satisfied. Louisiana Wholesale alleges that it was injured in the same general way and by the same general course of conduct that allegedly injured the other members of the class; it asserts liability based on legal theories that are common to the class; and it clearly has adequate individual incentives to prove all of the elements of the causes of action that individual members of the class would bring individually. Louisiana Wholesale’s claims are thus typical of most of the other members of the purported class. See NASDAQ,
For direct purchasers of buspirone seeking to establish violations of §§ 1 or 2 of the Sherman Act on the basis of the conduct alleged in the First Amended Class Action Complaint, common issues of fact and law also clearly predominate over any individual distinctions among the members of the proposed class, thus meeting Rule 23(b)(3)’s requirements for class certification. Proof of the allegedly monopolistic and anti-competitive conduct at the core of the alleged liability is common to the claims of all the plaintiffs. See generally Amchem,
Moreover, with respect to damages, Louisiana Wholesale seeks to establish the overcharges to the class and the antitrust injury using evidence that is applicable to the class as a whole, and this method of relying on generalized proof of class-wide injury has been employed by a number of other courts in almost identical contexts. See, e.g., In re Terazosin,
The numerous common issues of fact and law and the difficulty of numerous individual lawsuits indicates that a class action is superior to other methods for a fair and efficient adjudication of the controversy. The management difficulties of a direct purchaser class action are not substantial, and indeed BMS has not disputed that some direct purchaser class action is appropriate. Under the circumstances, a class action is the superior method of adjudicating the claims at issue. See, e.g., In re Terazosin,
BMS argues that this case is nevertheless atypical because three members of the proposed class — McKesson Corp., Amerisource-Bergen Corp. and Cardinal Health, Inc. (collectively, the “Big Three”) — allegedly accounted for approximately 90% of the dollar volume of purchases of Buspar® during the relevant time period but were not injured by any of the alleged conduct in this case. In support of this contention, BMS argues that if generic competition had entered into the market at an earlier period, the Big Three would have been able to obtain buspi-rone at a lower price but would also have lost much of their marketshare in buspirone to many of the numerous smaller wholesalers who are also part of the proposed class, such that their overall profits would have decreased. BMS argues that as a result, the Big Three cannot establish any injury, they lack standing to raise the claims in the
BMS’s arguments fail for several reasons. As an initial matter, there is no question that the Big Three could raise independent claims against BMS alleging that they were injured by paying overcharges relating to the conduct complained of in the First Amended Class Action Complaint. See, e.g., In re Terazosin,
In any event, the evidence that BMS proposes to rely upon presumes a definition of antitrust injury that is inconsistent with the Supreme Court’s holding in Hanover Shoe, Inc. v. United Shoe Machinery Corp.,
Much as in Hanover Shoe, BMS here seeks to offer proof that any overcharges to the Big Three overstate the actual economic injury they faced due to larger market forces, which mitigated the Big Three’s alleged overpayments for Buspar®. BMS contends that due to particularities of the phar
BMS argues that the defense it raises nevertheless falls within an exception to the Hanover Shoe rule. In Hanover Shoe, the Supreme Court stated that: “We recognize that there might be situations — for instance, when an overcharged buyer has a pre-exist-ing ‘cost-plus’ contract, thus making it easy to prove that he has not been damaged— where the considerations requiring that the passing-on defense not be permitted in this case would not be present.” However, the Supreme Court subsequently explained that:
[the] Court in Hanover Shoe indicated the narrow scope it intended for any exception to its rule barring pass-on defenses by citing, as the only example of a situation where the defense might be permitted, a pre-existing cost-plus contract. In such a situation, the purchaser is insulated from any decrease in its sales as a result of attempting to pass on the overcharge, because its customer is committed to buying a fixed quantity regardless of price. The effect of the overcharge is essentially determined in advance, without reference to the interaction of supply and demand that complicates the determination in the general case.
Illinois Brick,
Finally, one of the rationales of Hanover Shoe was that it would undermine the effectiveness of treble-damage actions to allow the many indirect purchasers, who may have only a tiny stake in the litigation, standing to sue, rather than vesting this standing in direct purchasers, who would have a very real stake in suing if they could obtain the full amount of any alleged overcharges. See Hanover Shoe,
For the foregoing reasons, Louisiana Wholesale’s motion for class certification is granted.
CONCLUSION
For the reasons explained above:
1. BMS’s motion for an order certifying Opinion and Order No. 19 for interlocutory appeal is denied.
2. BMS’s objections to the Magistrate Judge’s rulings dated June 26, 2002 are denied.
3. BMS’s Order to Show Cause why its deadline for electing whether it will raise a good faith/advice-of-counsel defense should not be stayed pending this decision has been withdrawn and is now moot. BMS is directed to make such an election by August 23, 2002. BMS should produce any documents required to be produced as a result of its election by September 6, 2002.
4. Louisiana Wholesale’s motion for class certification on behalf of the direct purchaser class is granted. Louisiana Wholesale is directed to submit by August 30, 2002 a proposed order granting class certification and providing for notice to the class. BMS may respond by September 6, 2002.
SO ORDERED.
Notes
. The End-Payor plaintiffs, Mylan, Watson and the States raise analogous state law causes of action or counterclaims for antitrust, unfair competition or unfair or deceptive trade practices, and/or unjust enrichment arising out of those same facts and circumstances (the " '365 Patent activities”).
. There is also a class action motion, and related motions, brought by the End-Payor plaintiffs, and a motion by BMS to dismiss various claims of the End-Payer plaintiffs. Those motions have not yet been argued.
. These cases were consolidated with another related patent action, which was filed by a generic competitor seeking declaratory relief that its filing of an ANDA would not infringe the '365 Patent. In three of the four original patent actions, BMS's generic competitors raised antitrust claims or counterclaims, which are still being pursued in this case.
. BMS also argues that it was an issue of first impression whether a patent claim for a pro-drug, which is naturally metabolized into certain metabolites in the body, for use in treating anxiety, inherently anticipates a patent claim that is allegedly broad enough to cover any use of that prodrug that is effective in treating anxiety by generating sufficient levels of the metabolite. However, this issue was not central to the order from which BMS currently seeks an interlocutory appeal, and BMS is already appealing the order that did include a decision of this issue (as part of one of a number of independent grounds for its final conclusions) to the Court of Appeals for the Federal Circuit.
. BMS originally submitted an Order to Show Cause why its deadline for electing whether to assert a good faith/advice-of-counsel defense should not be stayed pending this Court’s resolution of BMS's objections to the Magistrate Judge's rulings. This Order to Show Cause is now moot, and, in any event, was withdrawn with the consent of the parties at oral argument in light of the Court's stay of this deadline until August 17, 2002.
. Louisiana Wholesale originally sought to certify a class containing any purchasers of Buspar® from March 1, 1995 through and after the date the motion for class certification was filed until BMS's allegedly illegal conduct ceased. Louisiana Wholesale later took the position that this conduct effectively ceased on February 14, 2002, when this Court issued its Opinion and Order No. 18, finding that the '365 Patent did not cover uses of buspirone. In response to BMS's arguments in opposition to this class certification motion, however, and the Court’s separate decision in Opinion and Order No. 19 deciding the relevant statute of limitations for the purchaser plaintiffs' claims, Louisiana Wholesale has agreed to limit the class definition to the time period stated above.
. Louisiana Wholesale agreed to this limitation in response to BMS's argument in its opposition papers that federal governmental entities must be excluded from the class because they are not considered "persons” under Section 4 of the Clayton Act. BMS also objected to inclusion of any States in the class in view of the separate Complaint by various States, but, as Louisiana Wholesale correctly argues, not all States are plaintiffs, and those that are can choose to opt out of this class.