220 F.R.D. 672 | S.D. Fla. | 2004
ORDER GRANTING INDIRECT PURCHASER PLAINTIFFS’ MOTIONS FOR CLASS CERTIFICATION OF STATE-WIDE CLASSES
THIS CAUSE is before the Court upon the Indirect Purchaser Plaintiffs’ (“IPPs”) Motions for Class Certification of a StateWide Class of End-Payers in: Alabama [DE-453], California [DE-452], the District of Columbia [DE-451], Florida [DE-450], Illinois [DE-464], Kansas [DE-463], Maine [DE-462], Michigan [DE-461], Minnesota [DE-460], Mississippi [DE-59], Nevada [DE-458], New Jersey [DE-457], New Mexico [DE-455], New York [DE-456], North Carolina [DE-454], North Dakota [DE-465], South Dakota [DE-466], West Virginia [DE-467], and Wisconsin [DE-468]. Upon review of the Motions and supporting memoranda, the Defendants’ joint opposition, Indirect Purchaser Plaintiffs’ Reply, the parties’ supplemental briefings, and oral argument, the Court will GRANT the Indirect Purchasers’ Motions for Class Certification of a StateWide Class of End Payers with the exception of the Motion for Class Certification in the District of Columbia [DE-451], which is DENIED, and the Motion for Class Certification in New Jersey [DE-457], which is DENIED AS MOOT.
1. Factual Background
This case arises from Indirect Purchaser Plaintiffs’ assertion of antitrust injury and unjust enrichment in nineteen states, based on the allegedly anti-competitive conduct of Defendants Abbott Laboratories (“Abbott”), Geneva Pharmaceuticals, Inc. (“Geneva”), and Zenith Goldline Pharmaceuticals, Inc. (“Zenith”)
A. The Regulatory Framework and Abbott’s Patent Litigation
Under federal law, FDA approval is required before a company may begin selling a new drug in interstate commerce in the United States.
As a patent nears expiration, generic manufacturers often seek to market the generic version of brand name drugs that the FDA previously approved as an NDA. In that case, the Drug Price Competition and Patent Term Restoration At of 1984, 21 U.S.C. • § 355 (“the Hatch-Waxman Act”) permits the generic drug manufacturers to seek expedited FDA approval by filing an ANDA pursuant to 21 U.S.C. § 355(j). While the NDA applicant must submit safety and efficacy studies for every proposed new drug, ANDA applicants may rely on the safety and efficacy data already filed with the FDA by the manufacturer of the equivalent brand name drug.
After a generic applicant has submitted its ANDA to the FDA, it must file a patent certification with respect to each patent claiming the listed drug (or a method of using the listed drug) of which the applicant is aware. In so doing, the applicant must certify that: (1) the patent information has not been filed with the FDA; (2) the underlying patent is expired; (3) the patent will expire, identifying the expiration date; or (4) the patent is invalid or will not be infringed by the manufacture, use, or sale of the new drug. If the applicant certifies either that the patent information has not been filed or that the patent is expired, the FDA approval of the ANDA can proceed immediately. If the patent has not yet expired, the ANDA will not be approved until after the expiration date of the relevant patent. However, if the certification falls into the fourth category (known as a “paragraph IV certification”), the applicant must notify the patent holder, who then has the statutory right to bring suit for patent infringement, which will automatically delay approval of the ANDA for a period of thirty months.
Abbott holds a number of patents permitting it to manufacture and market drugs containing the chemical compound terazosin hydrochloride. Specifically, between 1977 and 1996, the United States Patent and Trademark Office (“the PTO”) issued Abbott seven different patents covering various tera-zosin formulations. According to Indirect Purchaser Plaintiffs, prior to March 1995, only three of Abbott’s patents relating to Hytrin had been submitted to the FDA for
Because of Hytrin’s success in the pharmaceutical market,
B. The Abbott-Zenith and Abbott-Geneva Agreements
In late March and early April 1998, Abbott entered into separate confidential settlement agreements with Zenith and Geneva, its two fiercest potential competitors, to resolve the ongoing patent litigation. Under the Ab-botl^Zenith agreement, entered into on March 31, 1998, Zenith agreed to accept $3 million to join Abbott in dismissing the pending actions between the two parties, as well as an additional $6 million per quarter to “not sell, offer for sale, donate, or otherwise commercially distribute in the United States any Terazosin Hydrochloride Product.” Zenith also obtained Abbott’s permission to market such products once generic competition began. Similarly, pursuant to the April 1, 1998 Abbott^Geneva agreement, Geneva agreed to accept Abbott’s payment of $4.5 million per month to refrain from selling any generic terazosin hydrochloride drag, including a terazosin capsule for which Geneva had obtained FDA approval in March 1998, until the earlier of: (1) the date on which another drug maker sold a generic version of Hytrin in the United States; or (2) the date on which Geneva received a final, unappealable judgment that its proposed generic tablet did not infringe Abbott’s patents.
As a result of these agreements, Abbott exclusively sold the only terazosin hydrochloride drug available in the United States until August 1999. The Abboth-Zenith and Ab-botMJeneva agreements terminated on August 13,1999, in response to a Federal Trade Commission investigation of the agreements which resulted in a consent settlement. On August 13, 1999, Geneva began to market its terazosin capsules, the first generic terazosin hydrochloride drug in the United States. Other generics, such as Mylan’s terazosin capsule introduced in February 2000, soon followed. While Abbott raised its average wholesale price for Hytrin capsules by 11.8% in the nine months following Geneva’s entry into the market, Geneva’s capsules were sold
II. The Indirect Purchaser Plaintiffs’ Class Certification Motions
As asserted in their Fourth Amended Complaint, Indirect Purchaser Plaintiffs seek damages from Defendants based on antitrust
On September 4, 2001, Indirect Purchaser Plaintiffs moved for certification of nineteen state-wide classes of “end-payers” in Alabama, the District of Columbia, California, Florida, Illinois, Kansas, Maine, Michigan, Minnesota, Mississippi, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, South Dakota, West Virginia, and Wisconsin [DE-450 through 468]. Indirect Purchaser Plaintiffs define “end -payers” as those consumers and third-party payers
All persons and entities who or which have at any time from October 15, 1995 to June 30, 20028 paid all or part of the purchase price of Hytrin or its AB-rated generic bioequivalents other than for resale, in [state] or via mail for residents of [state]. Excluded from the Class are the Defendants, their officers and directors, • their direct and indirect parent and subsidiary corporations and them officers and directors; government entities; entities that purchased Hytrin and its generic bioequi-valents for resale, to the extent of such purchases for resale; direct purchasers of Hytrin and its generic bioequivalents from Defendants, to the extent of such direct purchases; and indirect purchasers who*679 suffered no economic injury as a result of Defendants’ allegedly unlawful conduct.9
See IPPs.’ Response to Defs.’ Submission Regarding Alternative Indirect Purchaser Class Definitions, filed on March 2, 2004 [DE-1085] at p. 2. As Indirect Purchaser Plaintiffs bear the burden of satisfying the requirements for a class action under Fed. R.Civ.P. 23, see Gilchrist v. Bolger, 733 F.2d 1551, 1556 (11th Cir.1984), the Court will address those provisions in turn.
III. Discussion
A. Standing
It is well-settled in the Eleventh Circuit that prior to the certification of a class, and before undertaking any of the analysis under Rule 23, the district court must determine that at least one named class representative has Article III standing to raise each class claim. Wolf Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir.2000); see also Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987) (“[A]ny analysis of class certification must begin with the issue of standing.”). Indeed, “[ojnly after the court determines the issues for which the named plaintiffs have standing should it address the question whether the named plaintiffs have representative capacity, as defined by Rule 23(a), to assert the rights of others.” Griffin, 823 F.2d at 1482.
Under the principles of standing, “a plaintiff must allege and show that he personally suffered injury.” Id. (see Payne v. Travenol Lab., Inc., 565 F.2d 895, 898 (5th Cir.) (“To meet the requirement for standing under Article III, a plaintiff must establish either that the asserted injury was in fact the consequence of the defendant’s action or that the prospective relief will remove the harm.”) (citation omitted), cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978)). Thus, to satisfy this requirement, the Court must determine that the class representative is “part of the class and possesses] the same interest and suffered] the same injury as the class members.” Prado-Steiman, 221 F.3d at 1279 (citing Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). Ordinarily, it is not sufficient that a named plaintiff can establish a case or controversy between himself and the defendant by virtue of having standing as to one of many claims he wishes to assert. Rather, “each claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.”
The classes proposed by Indirect Purchaser Plaintiffs include both third-party payers and individual consumers. As will be addressed more fully in connection with the Court’s Rule 23 analysis, Defendants object to the inclusion of both types of purported end-payers in the same class, contending that the claims of insurance companies are atypical of the individual consumers’ claims and that antagonistic interests exist between the two groups. See Section III.B.4(a).
1. Named Third-Party Payer Class Representatives
a. Cobalt
As an initial matter, the Court notes that in an Order dated September 11, 2002, this Court concluded that Cobalt (formerly known as United Wisconsin Services, Inc. or “UWSI”) had Article III standing to assert the class claims in the states at issue. [DE-873]. Specifically, the Court held that “[d]e-spite Defendants’ arguments to the contrary, UWSI is not limited to pursuing a claim under the laws of Wisconsin only.” Id. at p. 6. This ruling was made in the context of Defendants’ Motion to Dismiss Certain State Counts of the Indirect Purchaser Plaintiffs’ Third Amended Coordinated Complaint. However, it is worth noting that with respect to standing requirements in general, the required showing depends on the stage of the litigation at which the standing issue is being decided. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Because this case has proceeded far beyond the pleading stage, the Court must now look beyond the allegations of the complaint and assess whether record evidence supports a finding that Cobalt has Article III standing. Id.
Cobalt purports to be a named class representative in fifteen states — California, Florida, Illinois, Kansas, Michigan, Minnesota, Mississippi, Nevada, New Mexico, New York, North Carolina, North Dakota, South Dakota, West Virginia, and Wisconsin. The record evidence reflects that during the class period, Cobalt reimbursed the following number of Hytrin and terazosin prescriptions in each state: 274 in California; 1,518 in Florida; 648 in Illinois; 95 in Kansas; 369 in Minnesota; 28 in Mississippi; 137 in Nevada; 22 in New Mexico; 29 in New York; 342 in North Carolina; 3 in North Dakota; 23 in South Dakota; 47 in West Virginia;
Defendants do not dispute that Cobalt, a Wisconsin corporation whose principal place of business is in Wisconsin, may serve as a named class representative in Wisconsin. See Defs.’ Opp’n, at p. 51; see also Compl. at H13. Defendants do assert, however, that Cobalt lacks standing in any state other than Wisconsin. Id. at 50-53. Specifically, applying the “most significant relationship” test, Defendants conclude that any injury suffered by Cobalt occurred in Wisconsin, thereby making Cobalt’s claims subject to Wisconsin law. Id. In support of this argument, Defendants point out that: (1) Cobalt is a Wisconsin corporation with its principal place of
While Defendants’ claim is premised on the notion that the state of purchase is the state where Cobalt reimburses the claims, Defendants have failed to provide any support for this argument. Indeed, other courts have recognized the propriety of basing class eligibility on the state where the patient resides, as opposed to the state where the pharmacy or insurance company is located. See generally In re Cardizem, 200 F.R.D. 297 (E.D.Mich.2001); see also In re Lorazep-am & Clorazepate Antitrust Litig., 205 F.R.D. 369, 396 (D.D.C.2002) (holding that “the plaintiffs’ choice to base class eligibility upon the [third-party payer] class members’ plan members’ states of residence [is] fair and reasonable because it generally comports with the purposes of the states’ antitrust laws.”).
As for Michigan, because Indirect Purchaser Plaintiffs have failed to proffer any evidence establishing that Cobalt reimbursed any claims in that state, Cobalt does not have standing to assert the Michigan class’ antitrust and unjust enrichment claims. Cobalt also lacks standing to assert the class claims in New York. As Defendants correctly argued, because the Donnelly Act’s Illinois Brick repealer was effective on January 1, 1998 and is not retroactive, and because Cobalt’s sole pre-1998 reimbursement in New York occurred in 1996, Cobalt is an inadequate class representative in that state.
b. Blue Cross/BIue Shield of Alabama and of Michigan
Blue Cross/BIue Shield of Alabama (“Alabama Blue”) and Blue Cross/BIue Shield of Michigan (“Michigan Blue”) seek to serve as named class representatives in Alabama and Michigan, respectively.
2. Named Consumer Representatives
a. Alabama
Class representative Willie O’Neal purchased Hytrin and generic terazosin hydrochloride from pharmacies in Alabama during the period of 1997-2001. See IPPs’ Pre-Argument Submission on Class Certification, Ex. G, Tab 1. Mr. O’Neal paid cash out-of-pocket for all of his prescription drug purchases during that period, and paid a lower price for generic terazosin than for Hytrin. Id. Mr. O’Neal testified that he switched to generic terazosin as soon as his pharmacist informed him that a generic had become available. Id. at 29, 33. Because Mr. O’Neal paid more for Hytrin during the period of alleged generic foreclosure, and later switched to the generic, he has the same interest and has alleged facts sufficient to indicate that he suffered the same injury as the purported class.
b. California
As to the named consumer class representatives, the record indicates that Victor Scaf-ani and William Mednick both purchased Hytrin and generic terazosin hydrochloride from pharmacies in California during the periods of 1998-2000 and 1996-2002, respectively. See Ex. G, at Tabs 2-3. Mr. Scafani’s purchase records indicate that he incurred a $15 co-payment for Hytrin, but paid only a $10 co-payment for generic terazosin hydrochloride once it became available. Id. at Tab 2. As for Mr. Mednick, pursuant to the terms of his health insurance benefit plan, his co-payments for purchases of Hytrin ranged from $10 to $15, while his co-payments for purchases of the generic drug ranged from $5 or $9 during the relevant period. Id. at Tab 3. Both Mr. Scafani and Mr. Mednick, therefore, have the same interest and have alleged facts sufficient to indicate that they suffered the same injury as the purported class.
c. District of Columbia
As to the proposed District of Columbia class, the sole named class representative, Clarence Reid, does not have Article III standing. While Mr. Reid purchased Hytrin during part of the class period, the record does not indicate that he suffered any injury from Defendants’ alleged anticompetitive conduct. See Ex. G, at Tab 4. Specifically, Mr. Reid’s deposition testimony indicates that under his health insurance benefits plan, he initially incurred a $15 co-payment for Hytrin prescriptions, which subsequently increased to $40 when generic terazosin hydrochloride became available. Id. Further, Mr. Reid testified that he never purchased the generic because as of November 1999, shortly after the generic became available, he became asymptomatic and no longer required medication for his prostate. Id. at pp. 42-43. There is also no indication that Mr. Reid would have purchased the generic had it been available earlier.
d. Florida
As Indirect Purchaser Plaintiffs conceded at the March 12, 2004 hearing, the named individual representative for the proposed Florida class, Antonio Lopez-Souto, does not have Article III standing. Indeed, in his deposition testimony, Mr. Lopez-Souto admitted that the never gave any thought to substituting generic terazosin hydrochloride for Hytrin. See Ex. G, at Tab 5, p. 14. However, because Cobalt does have standing in Florida, the standing requirement is met.
e. Maine
Class representative David Grund purchased Hytrin and generic terazosin from a pharmacy in Maine during the period of 1995-2001. See Ex. G, at Tab 6. Pursuant to his health insurance benefits plan, Mr. Grund made co-payments of $10, $20, or $30 during that time period for various pill counts and dosages of terazosin hydrochloride. Id. Based on the record evidence, Mr. Grund has standing to assert the claims of the purported class.
f. Michigan
Class representative Martin Bernstein purchased Hytrin and generic terazosin from a pharmacy in Michigan during the period of 1999-2001. Id. at Tab 7. Pursuant to his prescription drug benefits coverage, Mr. Bernstein was initially charged a co-pay of $3, which subsequently increased to $10, for each prescription filled. Id. Mr. Bernstein does not recall the specific difference in his co-payment for brand name drugs versus the generic versions, but he does recall that the generic cost him less. Id. Typical of the claims of other class members, Mr. Bernstein claims that he was overcharged during the period preceding generic entry into the market. Id. at 43. Based on the record evidence, Mr. Bernstein has standing to assert the claims of the purported class.
g. New York
Class representatives Albert J. Meyer and Lloyd Latona both purchased Hytrin and generic terazosin from pharmacies in New York, the former from 1998-2001 and the latter from 1994-2001. Mr. Meyer paid cash for Hytrin until 1998, when his wife changed health insurance coverage. See Ex. G, at Tab 8. Under the insurance plan, Mr. Meyer paid a $10 co-payment for Hytrin, until he switched to generic terazosin in January 2000 and began paying a $5 co-payment. Id. at pp. 29-30. Mr. Meyer, therefore, has alleged the same injury as the class, and Indirect Purchaser Plaintiffs have provided evidence that adequately supports his claim for purposes of the standing analysis. As to Mr. Latona, while it is clear that he switched from Hytrin to generic terazosin, Indirect Purchaser Plaintiffs have not provided the Court with any record evidence to indicate that he actually paid less for the generic than he did for the branded Hytrin. Based on the evidence currently before the Court, Mr. La-tona, therefore, does not have Article III standing.
h. Wisconsin
Class representative Lavera Grosskrueger’s husband, Ewald Grosskrueger, was prescribed Hytrin and generic terazosin hydrochloride during the period from 1998-2001. See Ex. G, at Tab 10. The Grosskruegers paid cash out-of-pocket for those prescriptions, which were filled via mail order by the American Association of Retired Persons Pharmacy and through two local pharmacies in Wisconsin. Id. Because she paid a lower price for the generic than for branded Hyt-rin, Mrs. Grosskrueger has standing to assert the claims of the Wisconsin class.
3. Standing Analysis Conclusion
Based on the foregoing analysis, the Court finds that for all of the proposed classes, except for the District of Columbia, at least one named plaintiff possesses the same interest and suffered the same alleged injury as the class members. Prado-Steiman, 221 F.3d at 1279-80. As to the District of Co
B. Standards for Determining Class Certification Under Fed.R.Civ.P. 23
Once a court has considered whether the named class representatives have standing to assert claims on behalf of the class, the analysis shifts to the requirements of Fed. R. Civ.P. 23. The burden of proof to establish the propriety of class certification rests with the advocate of the class — here, the Indirect Purchaser Plaintiffs. See Jones v. Diamond, 519 F.2d 1090, 1099 (5th Cir.1975)
“A class action may be maintained only when it satisfies all of the requirements of Fed.R.Civ.P. 23(a) and at least one of the alternative requirements of Rule 23(b).” Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir.2000) (citing Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir.1997)). Pursuant to Rule 23(a), a class may be certified only if: (1) the class is so numerous that joinder of all members would be 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). These four prerequisites of Rule 23(a) are commonly referred to as “numerosity, commonality, typicality, and adequacy of representation, and they are designed to limit class claims to those fairly encompassed by the named plaintiffs’ individual claims.” Prado-Steiman v. Bush, 221 F.3d 1266, 1278 (11th Cir.2000). Reviewing each of these requirements in turn, the Court finds that Indirect Purchaser Plaintiffs have met their burden under Rule 23(a).
1. Numerosity
Fed.R.Civ.P. 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Defendants do not dispute that the proposed classes, as defined, satisfy the numerosity requirement. See Defs.’ Opp’n, at p. 13, n. 6. Nonetheless, despite Defendants’ concession on this element, the Court “has the responsibility of conducting its own inquiry as to whether the requirements of Rule 23 have been satisfied in a particular case.” See Valley Drug Co., et al. v. Geneva Pharm., Inc., et al., 350 F.3d 1181, 1188 (11th Cir.2003) (citing Martinez-Mendoza v. Champion Int’l Corp., 340 F.3d 1200, 1216 n. 37 (11th Cir.2003)).
To meet the numerosity requirement, Indirect Purchaser Plaintiffs need not establish the exact size of the proposed class or identify all of the class members, but rather must demonstrate that the number is sufficiently large so as to make joinder impracticable. See Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 878 (11th Cir.1986). Impracticability, however, does not mean impossibility. The numerosity requirement is met when it would be inconvenient or difficult to join all of the class members, and may be satisfied with as few as 25-30 class members. In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 508 (S.D.N.Y.1996); see also
Considering these several factors, the Court finds that the Indirect Purchaser Plaintiffs have met their burden of establishing that the proposed classes are “so numerous that joinder of all members is impracticable.” In the Fourth Amended Complaint, Plaintiffs allege that between October 1995 and August 1999, Hytrin was the highest-margin product of Abbott’s Pharmaceutical Products Division, with total sales of Hytrin exceeding $1.75 billion. See Compl. at 1t 10. Based on these sales figures, and using IMS data,
It is undisputed that these thousands of members of the state Classes are geographically dispersed across their jurisdictions and throughout the United States. Further, many of the individual members of the state classes have claims that are far too small to justify bringing individual suits against the corporate Defendants. For these reasons, joinder of all members of the prospective classes would be highly impracticable. The Court therefore finds that the numerosity requirement of Rule 23(a)(1) has been satisfied.
2. Commonality
Under Fed.R.Civ.P. 23(a)(2), class certification requires a showing that “there are questions of law or fact common to the class.” The threshold finding for commonality under this section is qualitative rather than quantitative. See 1 Alba Conte & Herbert Newberg, Newberg on Class Actions § 3:10 (4th ed.2002). Consequently, Rule 23(a)(2) “does not require that all the questions of law and fact raised by the dispute be common.” See Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir.1986). Instead, courts in the Eleventh Circuit have held that “a single common question is sufficient to satisfy Rule 23(a)(2).” Powers v. Stuart-James Co., 707 F.Supp. 499, 502 (M.D.Fla.1989). As with the numerosity element, Defendants do not dispute that this requirement is met.
Where the complaint alleges that the Defendants have engaged in a standardized course of conduct that affects all class members, the commonality requirement will generally be met. See Roper v. Consume, Inc.,
Indirect Purchaser Plaintiffs cite several common questions of law and fact that affect all class members. See IPPs’ Mem. at pp. 8-9. Among them are: (1) whether, under common principles of antitrust and unfair trade practice law, Defendants’ methods, practices and acts, including, but not limited to, the Abbott-Zenith and Abbott-Geneva Agreements, violated the applicable laws of the respective Indirect Purchaser States; (2) whether Defendants’ acts, contracts, combinations and conspiracy restrained competition for the sale of Hytrin and its generic bioequivalents and prevented or delayed introduction of any AB-rated generic version of Hytrin in the United States; (3) whether, and the amount by which, Defendants’ illegal, inequitable and unfair trade practices have inflated the prices paid by members of the classes for Hytrin and its generic bioequiva-lents over the amounts they would have paid in a competitive market unaffected by Defendants’ illegal acts; and (4) whether, under common principles of unjust enrichment, Defendants unjustly enriched themselves to the detriment of Plaintiffs and the classes, entitling Plaintiffs and the classes to disgorgement of all benefits derived therefrom. Id.
Because these, and many other, common questions of law and fact are applicable to the claims of all class members, the Court finds that the requirements of Rule 23(a)(2) have been satisfied.
3. Typicality
Under the third prerequisite for class certification, the Court must assess whether the claims or defenses of the named representatives are typical of the claims or defenses of the class. Fed.R.Civ.P. 23(a)(3).
Indirect Purchaser Plaintiffs assert that they have met the typicality requirement by virtue of the fact that all of the members of the proposed classes — consumers and third party payers alike — have been subjected to overcharges for their payments for Hytrin because of the Defendants’ same unlawful conduct. See IPPs’ Mem. at p. 10. Specifically, Indirect Purchaser Plaintiffs argue that because “[a]ll of the claims of both the representative Plaintiffs and the Classes
Defendants challenge Indirect Purchaser Plaintiffs’ ability to satisfy the typicality requirement, arguing that each class member’s ability to prove its claim will depend on the unique facts surrounding that class member’s payment for its prescription for Hytrin and/or its generic alternatives. Further, Defendants dispute that the claims of third-party payers are properly considered “typical” of the claims of consumers, and that the claims of consumers are “typical” of the claims of third-party payers. These arguments, however, misconstrue Indirect Purchaser Plaintiffs’ burden under Rule 23(a)(3).
As noted above, once the party advancing the class establishes that the same unlawful conduct was directed at or affected both the, class representatives and the class itself, then “the typicality requirement is usually met irrespective of varying fact patterns which underlie the individual claims.” In re Managed Care Litig., 209 F.R.D. at 682; see also Singer v. AT & T Corp., 185 F.R.D. 681, 689 (S.D.Fla.1998) (noting that typicality “does not demand factual homogeneity. Therefore, the existence of factual differences does not defeat typicality.”). In this case, Indirect Purchaser Plaintiffs allege that the same unlawful conduct affected both the class representatives and the class itself. Specifically, consumers and third-party payers “engaged in the exact same type of transactions (retail payments for terazosin), most often as partners in common transactions (as co-payers) and suffered the same damage as a result of generic delay — they paid more than they otherwise would have paid for tera-zosin.” See IPPs’ Pre-Argument Submission on Class Certification, at p. 11.
As explained in Newberg on Class Actions, The main principle behind typicality is that the plaintiff will advance the interests of the class members by advancing her or his own self-interest. The alignment of interest is not the test for typicality. It is the result. The plaintiffs and class members have similar interests because they have similar claims. The plaintiff whose claim is typical will ordinarily establish the defendants’ liability to the entire class by proving his or her individual claim.
See 6 Alba Conte & Herbert Newberg, New-berg on Class Actions § 18:8 (4th ed.2002). Here, the claims of the consumer and the third-party payer class representatives are not only typical of the claims of all class members, they are virtually identical in nature, notwithstanding variations in the amount of damages. Consequently, if one class representative is able to prove that Defendants’ alleged anticompetitive acts caused an overcharge for terazosin hydrochloride, or that Defendants were unjustly enriched at Indirect Purchaser Plaintiffs’ expense, such proof will likewise prove the case on liability for every other class member. While Defendants attempt to distinguish the claims of the individual consumers from those of the third-party payers, it must be noted that “[tjypicality refers to the nature of the claims of the representative, not the individual characteristics of the plaintiff.” In re Playmobil Antitrust Litig., 35 F.Supp.2d
4. Adequacy of Representation
Rule 23(a)(4) requires that the representative party in a class action “must adequately protect the interests of those he purports to represent.” Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (11th Cir.2003) (citing Phillips v. Klassen, 502 F.2d 362, 365 (D.C.Cir.1974)). As interpreted by the Supreme Court and by the Eleventh Circuit, this requirement applies to both the named plaintiffs and to the class counsel. See London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1253 (11th Cir.2003) (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 626 n. 20, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). “Because all members of the class are bound by the res judicata effect of the judgment, a principal factor in determining the appropriateness of class certification is the forthrightness and vigor with which the representative party can be expected to assert and defend the interests of the members of the class.” Lyons v. Georgia-Pacific Corp. Salaried Employees Ret. Plan, 221 F.3d 1235, 1253 (11th Cir.2000) (internal citations omitted). This analysis “encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” Valley Drug Co., 350 F.3d at 1189 (citing In re HealthSouth Corp. Sec. Litig., 213 F.R.D. 447, 460-61 (N.D.Ala.2003)).
a. Conflicts of Interest
The Eleventh Circuit Court of Appeals has held that “[i]f substantial conflicts of interest are determined to exist among a class, class certification is inappropriate.” Id. However, “the existence of minor conflicts alone will not defeat a party’s claim to class certification; the conflict must be a ‘fundamental’ one going to the specific issues in controversy.” Id. (citations omitted). A fundamental conflict exists “where some party members claim to have been harmed by the same conduct that benefitted other members of the class.” Id. “In such a situation, the named representatives cannot ‘vigorously prosecute the interests of the class through qualified counsel’ because their interests are actually or potentially antagonistic to, or in conflict with, the interests and objectives of other class members.” Id. (citing In re HealthSouth Corp. Sec. Litig., 213 F.R.D. 447, 461-63 (N.D.Ala.2003)); see also Pickett v. Iowa Beef Processors, 209 F.3d 1276, 1280 (11th Cir.2000) (holding that “a class action cannot be certified when its members have opposing interests or when it consists of members who benefit from the same acts alleged to be harmful to other members of the class.”). Notably, a class conflict can be established in two ways: (1) where the record shows hard evidence of an actual disagreement or conflict; or (2) where the class is such that the court can simply imply that a realistic possibility of antagonism exists.
Defendants assert several potential “conflicts” and alleged antagonistic interests that they claim defeat Indirect Purchaser Plaintiffs’ class certification motions. Specifically, Defendants focus on: (1) perceived conflicts of interest between third-party payers and insured consumer class members; (2) conflicts among third-party payer insurers and pharmacy benefits management companies (“PBMs”); (3) consumers who paid the same flat co-payment for branded drugs as for the
i. Conflicts Between Thirdr-Party Payers and Consumers
As addressed in Section III.B.3, supra, Defendants object to the inclusion of both consumers and third-party payers in the same class.
... [I]nsurers generally determine an insured group’s prescription drug benefit premiums for a plan year by adding up the group’s covered claims experience for the preceding year, using actuarial techniques to project the prior experience forward and estimate expected claims for the coming year, and then calculating the premium needed to recover the expected claims (plus any administrative expenses and profit). Because they reflect a group’s complete claims experience, including reimbursements for all covered branded and generic drugs, premiums automatically reflect not only the costs of all covered drugs but also all changes in such costs, including from the introduction of generics. Under this system, therefore, the premiums paid by all insured consumers and their employers (because they pay a portion of the premiums) will vary depending on the availability of generic versions of drugs without the insurer needing to track or predict specific generic launches because the claims experiences will incorporate the prices of all drugs and will fall with generic entry as a new generic makes price and market share inroads on a branded drug.
See Defs. ’ Opp’n, at p. 14. Indirect Purchaser Plaintiffs argue that Defendants’ asserted “conflict” is based on a misreading of the record evidence and misapprehends the nature of the premium setting process.
In support of this contention, Defendants rely primarily on the testimony of Janet McGowin, a Vice President with Alabama Blue, and Michael Murray, Cobalt’s Vice President and Chief Actuary. Ms. McGowin and Mr. Murray both testified (either through depositions or affidavits) as to the model used by insurance companies for setting future premiums. Specifically, Defendants rely on Ms. McGowin’s testimony that
While these quotes are accurate, the record indicates, and Defendants concede, that the third-party payers take no account of the expected impact of individual drugs (such as Hytrin) on claims when determining premiums to be charged. In fact, Mr. Murray testified that “Cobalt does not consider potential price increases for specific drugs when predicting future trends in drug costs... Instead, Cobalt analyzes drug costs in the aggregate to determine appropriate trend factors for these pharmacy benefits services.” Therefore, Defendants’ claim that any overcharges for Hytrin in particular were passed on by the third-party payers to consumers the following year is unsupported by the record.
Further, to the extent that any third-party payer did charge its insureds a higher premium because of a drug company’s monopolistic activities, the charging of a higher premium in the future cannot be accurately described as a “pass on” of those charges. The record is clear that the purpose of a future projection is, as the name implies, to estimate anticipated future costs. Defendants point to nothing in the record that indicates that the purpose of projecting a future cost (and charging such a cost as a premium in the future) is to recover money that a third-party payer is paying out for present claims. Nor have Defendants shown such a recovery to be the result of future claims projections. Indeed, as Ms. McGowin testified, if, in a given year, an insurance company pays out more in claims that it has charged as a premium, the company records that deficit as a loss and there is no retroactive increase of the premium charged for that year.
Defendants repeatedly argue, throughout their submissions, that the burden of establishing that class certification is appropriate rests with the advocate of the class, here the Indirect Purchaser Plaintiffs. While this is a correct statement of the law in this Circuit, see Gilchrist v. Bolger, 733 F.2d 1551, 1556 (11th Cir.1984), class certification cannot be defeated merely because Defendants assert unsupported allegations of conflict between potential class members. When Defendants come forward with an alleged conflict, the Court must scrutinize the record citations Defendants cite to determine whether such evidence establishes the existence of a conflict, or whether it provides a basis for the Court to imply that a realistic possibility of antagonism exists. See Valley Drug Co., 350 F.3d at 1192; see also Miles, 916 F.2d at 1534. If “the evidence provided by the defendants is deemed to be inaccurate or unreliable ... the plaintiffs may yet meet their burden of proof necessary to maintain a class action under Rule 23(a)(4).” Id. In this case, extensive discovery on the issue of the alleged “pass on” has been conducted, and Defendants’ citations fail to establish any jfundamental conflict, or provide any indication that a “realistic probability of antagonism” exists, such that class certification would be inappropriate. Accordingly, the Court rejects this argument.
ii. Conflicts Between Third-Party Payers and PBMs
Next, Defendants contend that conflicts between third-party payers and PBMs
Defendants contend that the multi-faceted and complex roles that PBMs play in the pharmaceutical distribution and benefits administration process create irreconcilable in-tra-class conflicts between PBMs and their insurer clients, and render class-wide determination of impact and damages impossible.
Again, Defendants have failed to identify any specific record evidence supporting their allegations of conflict, or to provide the Court with a sufficient basis for implying that a realistic probability of antagonism exists. First, Indirect Purchaser Plaintiffs concede that to the extent that a PBM is at risk for paying the overcharge at issue, then the PBM falls within the definition of the classes, a possibility taken into account in their damages model. See IPPs’ Reply Mem., at p. 20. And while Defendants argue that the inclusion of PBMs will create the need for individualized inquiries, any such individual issues can be adequately addressed during the claims administration stage of this litigation. See Section III.C.l below.
Second, Defendants’ allegations of fundamental intra-class conflicts are premised
iii. Flat Co-Payers
Relying on the Eleventh Circuit’s decision in Valley Drug Co., Defendants argue that certification of the proposed classes is inappropriate because they include class members who were unharmed or who, in fact, benefitted from delayed generic entry. As to the former, Defendants point to those insured consumers who paid the same flat co-payment for drug purchases irrespective of whether they opted for the brand name drug or the generic bioequivalent. With respect to these individuals, Defendants argue, there can be no showing that generic foreclosure resulted in any antitrust injury. Further, as Defendants note, Indirect Purchaser Plaintiffs’ damages expert, Dr. Hartman, conceded that consumers with flat co-payments would not have been harmed by delayed generic entry.
In this regard, the Court agrees that flat co-payers, who suffered no economic injury due to delayed generic entry, are not proper class members. However, Indirect Purchaser Plaintiffs’ proposed class definition properly accounts for the flat co-payer problem, as it specifically excludes “indirect purchasers who suffered no economic injury as a result of Defendants’ allegedly unlawful conduct.” Thus, the Court finds that flat co-payers are not part of the proposed classes, as defined, and therefore present no obstacle to class certification.
iv. Brand Loyalists
Finally, Defendants oppose Indirect Purchaser Plaintiffs’ ability to establish the adequacy of class representation requirement because of the presence of brand loyalists in the proposed class definition. Bx'and loyalists, as defined by Defendants, are those consumers who would not have switched from Hytrin to generic terazosin even if the
The record is devoid of any evidence that brand loyalists “benefitted” from delayed generic entry, nor does it appear from the record that a reasonable probability of antagonism exists with respect to such individuals. In fact, when asked to provide evidence supporting their argument that brand loyalists benefitted from generic foreclosure, Defendants instead argued that Dr. Hartman’s damages methodology fails to adequately account for, or quantify, such consumers.
b. Vigorous Prosecution of Class Claims
Rule 23(a)(4) is also designed to ensure that the class representatives and class counsel will vigorously prosecute the class claims. See Andrews v. Am. Tel. & Tel. Co., 95 F.3d 1014, 1023 (11th Cir.1996) (citing In re Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir.1996)).
C. The Requirements of Rule 23(b)(3)
In addition to satisfying these four requirements of Rule 23(a), Indirect Purchaser
1. Predominance of Common Questions of Law or Fact
That common questions of law or fact predominate over individualized questions means that “the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, must predominate over those issues that are subject only to individualized proof.” Kerr v. City of West Palm Beach, 875 F.2d 1546, 1558 (11th Cir.1989) (quoting Nichols v. Mobile Bd. of Realtors, Inc., 675 F.2d 671, 676 (5th Cir.1982)). “The predominance inquiry focuses on ‘the legal or factual questions that qualify each class member’s case as a genuine controversy,’ and is ‘far more demanding’ than Rule 23(a)’s commonality requirement.” Jackson, 130 F.3d at 1005 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623-24, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)). Nonetheless, “[cjommon questions need only predominate; they need not be dispositive of the litigation.” In re Potash Antitrust Li-tig., 159 F.R.D. at 693.
As part of the predominance analysis, courts must “examine the causes of action asserted in the complaint on behalf of the putative class.” Rutstein, 211 F.3d at 1234 (citing McCarthy v. Kleindienst, 741 F.2d 1406, 1412 (D.C.Cir.1984)). Whether an issue predominates can only be determined after considering what value the resolution of the class-wide issue will have in each class member’s underlying cause of action. Id. (citing Amchem, 521 U.S. at 623, 117 S.Ct. 2231) (“[The predominance] inquiry trains on the legal or factual questions that qualify each class member’s case as a genuine controversy.”).
In determining whether Rule 23(b)(3) is satisfied, the Court must consider how Indirect Purchaser Plaintiffs intend to prove: (1) liability on each of their claims; (2) the fact of injury; (3) the quantum of injury, namely the amount of their damages; and (4) whether the evidence is common to the class or unique to the individual class members. See In re Cardizem, 200 F.R.D. at 340. In so doing, the Court must not consider the merits of the Indirect Purchaser Plaintiffs’ claims, but rather must consider whether each element is susceptible to proof by gen
Upon examination of the antitrust and unjust enrichment claims of the proposed classes, and based on an analysis as to whether the resolution of class-wide issues will have a substantial impact on each class member’s underlying case, the Court concludes that common questions of law and fact predominate over individuals issues. Therefore, the requirements of Rule 23(b)(3)’s predominance test have been met.
a. Common Proof on Antitrust Liability
In this case, the claims of the proposed state classes arise out of the same alleged illegal conduct by Defendants and are based on the same related antitrust theories of monopolization and conspiracy in restraint of trade. Although each proposed class is proceeding under its own state law, class certification pursuant to Rule 23(b)(3) is nonetheless appropriate where there is a commonality of substantive law applicable to all class members. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821-23, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985). Indirect Purchaser Plaintiffs have cited case law under each state antitrust statute interpreting the acts coextensively with the federal antitrust laws. See IPPs’ Mot. at pp. 21^10. As explained below, the essential elements of Indirect Purchaser Plaintiffs’ antitrust claims do not vary significantly from state-to-state,
i. Conspiracy to Restrain Trade
In general, a federal or state claim based upon a theory of antitrust conspiracy raises three ultimate issues to be proven at trial: (1) the existence of a contract, combination or conspiracy in restraint of trade (liability); (2) injury-in-faet (antitrust injury); and (3) the extent of injury (damages). See J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 562, 101 S.Ct. 1923, 68 L.Ed.2d 442 (1981). As demonstrated by Indirect Purchaser Plaintiffs, all proof relative to Defendants’ alleged conspiracy to restrain trade is common to the members of each of the state classes. In fact, “courts repeatedly have held that the existence of a conspiracy is the predominant issue in price fixing cases, warranting certification of the class even where significant individual issues are present.” In re NASDAQ, 169 F.R.D. at 518; see also In re Potash Antitrust Litig., 159 F.R.D. 682. This holding is equally applicable to market allocation eases. See In re Cardizem CD Antitrust Litig., 105 F.Supp.2d 682, 706 (E.D.Mich.2000).
Indirect Purchaser Plaintiffs intend to rely on common evidence, in the form of Defendants’ covert written agreements to delay domestic competition for the sale of terazosin hydrochloride, to establish the existence of a conspiracy to restrain trade. On this element, there can be no serious dispute that the proposed generalized evidence will apply to each class as a whole, as “such proof obviates the need to examine each class member’s individual position.” In re Potash Antitrust Litig., 159 F.R.D. at 693.
ii. Monopolization
Whether proceeding under federal or state antitrust law, claims of monopolization are generally proven by demonstrating: (1) possession of monopoly power in the relevant market; and (2) the willful acquisition or maintenance or use of that power by anti-competitive or exclusionary means. United States v. Grinnell, 384 U.S. 563, 570-71, 86
The first element of a monopolization claim — monopoly power — is “the power to control market prices or exclude competition.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). “[T]he material consideration in determining whether a monopoly exists is not that prices are raised and that competition actually is excluded, but that power exists to raise prices or to exclude competition when it is desired to do so.” American Tobacco Co. v. United States, 328 U.S. 781, 811, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). In determining whether a defendant has market power, a court must assess whether the “seller has the power to raise prices, or impose other burdensome terms such as a tie-in, with respect to any appreciable number of buyers within the market.” Fortner Enter., Inc. v. United States Steel Corp., 394 U.S. 495, 504, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969). All of these issues are capable of determination using common proof, as they focus on Abbott’s power and are not impacted by any individual determinations relating to specific classes or class members.
Additionally, the definition of the relevant market for determining market power is a question common to all members of the class, and is one" that will predominate over any individualized inquiries. See Jennings Oil Co., Inc. v. Mobil Oil Corp., 80 F.R.D. 124, 129 (S.D.N.Y.1978); see also Gold Strike Stamp Co. v. Christensen, 436 F.2d 791, 794 n. 6 (10th Cir.1970). Indirect Purchaser Plaintiffs from all states have uniformly alleged, and will attempt to prove through common evidence, that Abbott had market power in the United States market for tera-zosin hydrochloride. Each absent member of the proposed classes will assert the same definition. Therefore, whether Abbott had market power is a question common to all members of each of the state classes, and the resolution of this common issue will affect all members of the classes without regard to individualized inquiries.
Finally, as to the second element of a monopolization claim, Indirect Purchaser Plaintiffs can establish the willful acquisition or maintenance of monopoly power by demonstrating that the alleged monopolist “impaired competition in an unnecessarily restrictive way.” Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 605, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985). In this case, once the members of the state classes establish that Abbott is a monopolist, Indirect Purchaser Plaintiffs will uniformly focus on the Abbott^Geneva and Abbott-Zenith agreements to satisfy this second element of the monopolization claim. See IPPs’ Mot. at p. 18. Accordingly, the predominance test has been met as it relates to Indirect Purchaser Plaintiffs’ monopoly claims.
iii. Common Proof of Antitrust Impact
The fact of injury or “impact” is an essential element of the antitrust claims that requires proof that Indirect Purchaser Plaintiffs suffered some injury that was caused by Defendants’ antitrust violations. See Martino v. McDonald’s Sys. Inc., 86 F.R.D. 145, 147 (N.D.Ill.1980) (observing that “the fact of damage pertains to the existence of injury, as a predicate to liability; actual damages involve the quantum of injury, and relate to the appropriate measure of individual relief.”). Indirect Purchaser Plaintiffs have shown that they can use common evidence to prove the impact of the Defendants’ alleged anti-competitive conduct with a fair degree of certainty as to the proposed classes, without resorting to lengthy individualized examinations.
In an overcharge case, impact is shown through proof that: (1) Defendants charged more than they would have but-for them antitrust violation; and (2) class members made some purchases at the illegally inflated or stabilized price. See Hanover Shoe v. United Shoe Mach. Corp., 392 U.S. 481, 489, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968); Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309, 324 (5th Cir.1978). Courts in the Eleventh Circuit have recognized that a presumption of impact properly arises in such cases where the defendants have market power
However, even putting aside this presumption of impact, Indirect Purchaser Plaintiffs have presented ample common evidence, premised on market data and expert testimony, on this element. Specifically, Indirect Purchaser Plaintiffs propose to establish antitrust impact by showing, inter alia, that:
Defendants primarily challenge the impact element by arguing that: (1) third-party payers passed on all claimed overcharges to consumers, and therefore, cannot prove that they sustained any antitrust impact; (2) the multi-faceted role of PBMs creates individualized inquiries that are not susceptible to common proof on impact; and (3) some consumers included in the class definition were not harmed. The Court has previously addressed, and rejected, each of these contentions. And to the extent that Defendants argue that these issues will necessarily result in individualized inquiries, such individualized examinations “will relate to the quantum of damages, not the fact of injury.” See In re Cardizem, 200 F.R.D. at 307. Therefore, because the fact of antitrust injury is susceptible to common proof, as outlined above, Defendants’ challenges are insufficient to defeat class certification.
b. Common Proof of Unjust Enrichment
Likewise, the question of whether Defendants were unjustly enriched is susceptible to proof using common, generalized evidence. Section 1 of the Restatement (First) of Restitution provides that a “person who has been unjustly enriched at the expense of another is required to make restitution to the other.” Under Comment (a) to Section 1, the Restatement further explains that a “person is enriched if he has received a benefit. A person is unjustly enriched if the retention of the benefit would be unjust.” Finally, Comment (b) provides that a “person confers a benefit upon another if he gives to the other possession of or some interest in money, land, chattels, or chooses in action, performs services beneficial to or at the request of the other, satisfies a debt or a duty of the other, or in any way adds to the other’s security or advantage.” Taken together, the Restatement sets forth a four-part test for claims of unjust enrichment: (1) the unjust; (2) retention of; (3) a benefit received: (4) at the expense of another.
According to Indirect Purchaser Plaintiffs, proof of the conferral of a benefit on Defendants will be established through testimony of participants in the pharmaceutical distribution chain that Abbott’s profits from Hyt-rin were directly attributable to consumer and third-party payer purchases. See IPPs’ Pre-Argument Submission, at p. 21. Once conferral of a benefit is established, Indirect Purchaser Plaintiffs will demonstrate, through common evidence from Dr. Hartman, the amount of excess profits that Abbott reaped because of its allegedly invalid patents and its alleged efforts to block generic competition. As is the nature of unjust enrichment claims, this common evidence will focus on the defendant’s gain and not on the plaintiffs loss. Accordingly, it is evident that success or failure in proving this unjust enrichment claim will mean success or failure for the class as a whole, not for individual class members. See In re Cardizem, 200 F.R.D. at 352. Therefore, the Rule 23(b)(3) analysis has been met.
c. Common Proof of Damages
In addition to showing class-wide injury as a result of Defendant’s conduct, Indirect Purchaser Plaintiffs must show that computation of class-wide damages (or the quantum of injury) is susceptible to common proof. Domestic Air Transp. Antitrust Litig., 137 F.R.D. 677, 692 (N.D.Ga.1991). “Antitrust plaintiffs have a limited burden with respect to showing that individual damages issues do not predominate.” In re Cardizem CD Antitrust Litig., 200 F.R.D. 326, 348 (E.D.Mich.2001) (citing In re Potash Antitrust Litig., 159 F.R.D. at 697). Plaintiffs do not need to supply a precise damage formula at the certification stage of an antitrust action. Instead, in assessing whether to certify a class, the Court’s inquiry is limited to whether or not the proposed methods are so insubstantial as to amount to no method at all.” Id. At the class certification stage, therefore, Indirect Purchaser Plaintiffs need only come forward with plausible statistical or economic methodologies to demonstrate impact on a class-wide basis.
While Defendants complain that Dr. Hartman’s methodologies are too imprecise for class certification, and further object to many of the underlying assumptions upon which his calculations are based, such contentions cannot defeat class certification. As noted above, for class certification purposes, plaintiffs need not supply a precise damage formula and the Court need not decide which approach is best-suited to the particularities of this case. “It is sufficient to note at this stage that there are methodologies available, and that Rule 23(c)(1) and (d) allow ample flexibility” to deal with the individual damages issues that may develop.
Further, Defendants’ challenges to Dr. Hartman’s methodologies are concerns that relate primarily to the allocation of damages among individual class members, not to the computation of aggregate damages on a class-wide basis. Assuming the jury renders an aggregate judgment, allocation will become an intra-class matter accomplished pursuant to a court-approved plan of allocation, and such individual damages allocation issues are insufficient to defeat class certification. See In re Potash, 159 F.R.D. at 697 (“The amount of damages largely involves individualized questions. This is typically true in antitrust class actions, however, and does not preclude certification.”). Indirect Purchaser Plaintiffs need only show that the proof they will utilize is sufficiently generalized in nature that “the class action will provide a tremendous savings of time and effort” to the Court. Based on the analyses offered by Dr. Hartman, the Court is satisfied that Indirect Purchaser Plaintiffs have sufficiently demonstrated that common issues relating to Defendants’ liability, in the aggregate, predominate over potential individual damage issues.
Rule 23(b)(3) requires that the Court determine that the class action device is superior to other available methods for the fair and efficient adjudication of these controversies. Factors to be considered as part of this analysis include: (1) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the difficulties likely to be encountered in the management of a class action. See Fed.R.Civ.P. 23(b)(3). Considering these factors, it is clear that a class action is the superior method for the fam and efficient adjudication of this controversy.
The class action mechanism offers substantial economies of time, effort, and expense for the litigants in this matter, as well as for the Court. Indeed, Indirect Purchaser Plaintiffs’ “conservative” estimate of the number of potential class members demonstrates the superiority of the class mechanism. Multiple lawsuits brought by thousands of consumers and third-party payers in seventeen different states would be costly, inefficient, and would burden the court system. See In re Cardiz-em, 200 F.R.D. at 351 (citing In re NASDAQ, 169 F.R.D. at 527).
Further, as to the consumer class members, the class action device is particularly appropriate where, as here, it is necessary to “permit the plaintiffs to pool claims which would be uneconomical to litigate individually.” Phillips Petroleum, Co. v. Shutts, 472 U.S. 797, 809, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985);
Defendants argue that the proposed classes are unmanageable because: (1) they would require countless individualized analy-ses of choice of law questions;
In reaching this conclusion, the Court acknowledges that management of the several state classes will raise numerous challenges. However, these challenges are ones that routinely arise in complex litigation, and they are insufficient to overcome the innumerable advantages that class treatment will afford. Further, Indirect Purchaser Plaintiffs have presented the Court with compelling arguments demonstrating the manageability of the classes, particularly in light of the common evidence that will be used to prove Defendants’ alleged illegal conduct. Accordingly, the Court finds that the superiority requirement of Rule 23(b)(3) has been satisfied.
D. Appointment of Class Counsel Under Rule 23(g)(1)
On June 6, 2000, the Court designated the firms of Lowey Dannenberg Bemporad & Selinger, P.C. (“LDBS”) and Cohen, Milstein, Hausfeld & Toll, P.L.L.C. (“CMHT”) as co-Lead Counsel for the Indirect Purchaser Plaintiffs. See [DE-110] at H 5. The law firm of Gauthier, Downing, LaBerre, Beiser & Dean was also added as additional Co-Lead Counsel on August 25, 2000, but was ultimately replaced by Wallace, Jordan, Ratliff & Brandt, LLC (“WJRB”)
While these firms have been acting on behalf of the proposed Indirect Purchaser Classes as interim counsel, pending a final decision on class certification, the Court must now formally appoint class counsel to represent the certified Indirect Purchaser Classes for the remainder of these proceedings. Pursuant to the amendments to Rule 23 that took effect on December 1, 2003, the Court, in making this appointment, must consider; (1) the work counsel has done in identifying or investigating potential claims in this action; (2) counsel’s experience in handling class actions, other complex litigation, and claims of the type asserted in this action; (3) counsel’s knowledge of the applicable law; and (4) the resources counsel will commit to representing the class. See Fed.R.Civ.P. 23(g)(l)(C)(I). The Court may also consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class and may, if it deems it
To comply with this recent amendment to Rule 23, the Court, on February 9, 2004, directed Indirect Purchaser Plaintiffs to provide supplemental information regarding proposed class counsel.
The consideration that the Court finds to be most persuasive, however, relates to Co-Lead Counsel’s experience in, and knowledge of, the applicable law in this field. As noted in the firm resumes of LDBS, CMHT, and WJRB, as well as the individual resumes of the firms’ members, Co-Lead Counsel have extensive experience in the antitrust and complex litigation fields. For example, LDBS served as co-lead counsel for end payers in the In re Cardizem case in Michigan and CMHT was co-lead counsel for end payers in the Buspirone litigation in New York, among many others.
IV. Conclusion
For the reasons expressed in the foregoing opinion, it is hereby
ORDERED that:
(1) The Indirect Purchaser Plaintiffs’ Motions for Class Certification of a State-Wide Class of End-Payers are GRANTED in: Alabama [DE^453], California [DE-452], Florida [DE-450], Illinois [DE-464], Kansas [DE-463], Maine [DE^62], Michigan [DE-461], Minnesota [DE-460], Mississippi [DE-459], Nevada [DE-458], New Mexico [DE-455], New York [DE-456], North Carolina [DE-454], North Dakota [DE-465], South Dakota [DE-466], West Virginia [DE-467], and Wisconsin [DE-468]
(2) The Indirect Purchaser Plaintiffs’ Motion for Class Certification of a State-Wide Class of End-Payers in the District of Columbia [DE^451] is DENIED;
(3) The Indirect Purchaser Plaintiffs’ Motion for Class Certification of a State-Wide
(4) In those states where the Court is granting the motions for certification of a state-wide class of end-payers, the definition of the classes shall be as follows:
All persons and entities who or which have at any time from October 15, 1995 to June 30, 2002, paid all or part of the purchase price of Hytrin or its AB-rated generic bioequivalents other than for resale, in [state] or via mail for residents of [state]. Excluded from the Class are the Defendants, their officers and directors, their direct and indirect parent and subsidiary corporations and their officers and directors; government entities; entities that purchased Hytrin and its generic bioequi-valents for resale, to the extent of such purchases for resale; direct purchasers of Hytrin and its generic bioequivalents from Defendants, to the extent of such direct purchases; and indirect purchasers who suffered no economic injury as a result of Defendants’ allegedly unlawful conduct.
(4) These determinations are conditional and may be modified prior to the decision on the merits in light of any changes in the circumstances that make such modification advisable. See Fed.R.Civ.P. 23(c)(1).
. On September 11, 2002, this Court issued an Order Granting In Part and Denying In Part Defendants’ Motion to Dismiss Certain State Counts of the Indirect Purchaser Plaintiffs' Third Amended Coordinated Complaint [DE-873]. In that Order, this Court dismissed with prejudice the claims of the New Jersey indirect purchasers. Id. at p. 7. Accordingly, the motion to certify a class of indirect purchasers in New Jersey, which was filed a year before the Court's dismissal of their claims, must be denied as moot.
. Zenith, now known as Ivax Pharmaceuticals, Inc., entered into a settlement with Indirect Purchaser Plaintiffs in 2002. The Settlement Agreement was preliminarily approved by this Court on August 23, 2002 [DE-858]. Following a fairness hearing, the Court finally approved the set-
. The regulatory framework governing FDA approval for drugs, and the significance of the patent system, is more thoroughly explained in the Eleventh Circuit Court of Appeals' decision in Valley Drug Co., et al. v. Geneva Pharm., Inc., et al., 344 F.3d 1294, 1296-1300 (11th Cir.2003).
. Hytrin proved to be a highly profitable drug for Abbott, generating $481 million in sales for Abbott in 1998 alone. This figure constituted approximately 20% of Abbott's net sales of pharmaceutical products that year, and made Hytrin the 33rd best-selling prescription drug in the United States by dollar volume.
. Under United States Supreme Court precedent, indirect purchasers do not have standing to seek damages under the federal antitrust law. See Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968); see also Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977). However, in the instant case, each proposed indirect purchaser state class is proceeding under an Illinois Brick repealer statute, or under unfair trade practices legislation.
. As will be addressed in section III.C.l below, the various state statutes under which Indirect Purchaser Plaintiffs are proceeding require the same elements for claims of monopolization and restraint of trade as the federal antitrust laws.
. Third-party payers, sometimes referred to here as TPPs, can be further categorized into: (1) traditional insurers, such as proposed class representatives Cobalt, Blue Cross/Blue Shield of Michigan, and Blue Cross/Blue Shield of Alabama, and (2) self-funded employer health benefit plans ("SFPs”) that act as insurers for their own employees.
. The Court notes that this proposed class definition represents a slight modification of the original definition suggested by the Indirect Purchaser Plaintiffs. Specifically, the current proposal provides a June 30, 2002 end date for the class period. When asked about the significance of this date at the March 12, 2004 oral argument, Indirect Purchaser Plaintiffs responded that it does not have any particular significance, but that it represents a reasonable ending date for the class period. While some residual damages may have continued to accrue after that date, Indirect Purchaser Plaintiffs believe that prices had stabilized by then. Defendants have not asserted any particular opposition to the June 30, 2002 date.
. The clear exclusion of "indirect purchasers who suffered no economic injury as a result of Defendants’ allegedly unlawful conduct” also represents a modification of the original class definition. As will be more fully discussed below, this exclusion eliminates some of the potential conflicts that may arise in the context of the Rule 23(a)(4) analysis.
. Although the Eleventh Circuit instructs that each claim must be analyzed separately for standing purposes, in this case, the interwoven facts that give rise to both Plaintiffs' antitrust and unjust enrichment claims indicate that any class representative who has Article III standing for one claim will necessarily have standing for the other. See IPPs’ Mot. at p. 45 ("The same operative facts which form the basis of each of the state Classes’ claims based upon antitrust theories form the basis of the Classes’ claims for unjust enrichment."). Indeed, in their arguments on standing and typicality, Defendants have failed to distinguish between the antitrust and unjust enrichment claims.
. Because many of the elements relevant to class certification overlap with one another, the Court will often cross-reference other sections in this Order. For the convenience of the parties, the Court has appended to the end of this Order an index listing the pages on which each subsection begins.
. Defendants, in a footnote devoid of any citations, also challenge Cobalt's standing in South Dakota and West Virginia. Specifically, Defendants argue that because those states' monopolization claims rest on allegations regarding Abbott’s unilateral conduct between 1995 and 1998, and Cobalt made no purchases in those states during that time period, Cobalt lacks standing either individually or as a representative of the class. See Defs.' Opp'n, at p. 51, n. 26. Defendants have failed to provide any support for this argument. As will be discussed in more detail under the typicality requirement, there is no requirement under Rule 23 that the claims of the named class representatives be identical in substance or scope to those of the class members, either for standing or for typicality purposes. See Section III.B.3 below. Therefore, the mere fact that Cobalt's reimbursements were not made during the same time period as the class' allegations does not defeat Cobalt's standing in those states.
. In the Lorazepam & Clorazepate Antitrust Litig. case, the United States District Court for the District of Columbia recognized that basing class eligibility on, for instance, the location of the pharmacy where the prescription is filled or the state where the third-party payer resides, would result in "anomalous situations" in which residents of particular states could benefit from other state's statutes although the legislature of their own states intended for no such protections. 205 F.R.D. at 396-97.
. Although Indirect Purchaser Plaintiffs' did not dispute Defendants’ interpretation of the Donnelly Act, they did argue that "Defendants' merits-based statute of limitations arguments are improperly raised in this class certification motion.” However, the Eleventh Circuit has recognized that "a class representative whose claim is time-barred cannot assert the Claim on behalf of the class.” See Piazza v. Ebsco Indus., Inc., 273 F.3d 1341 (11th Cir.2001) (citing Carter v. West Publ’g Co., 225 F.3d 1258, 1267 (11th Cir.2000) (reversing class certification because the named plaintiff, whose claim was time-barred, lacked standing to assert the claim)). While the Court reaches no ultimate conclusion on the merits of Defendants' statute of limitations argument, it appears, based on the information presently before the Court, that Cobalt's New York claims cannot proceed.
. On March 2, 2004, Alabama Blue and Michigan Blue moved the Court for permission to be joined as named class representatives in all of the other proposed state classes [DE-1086]. The Court denied their motion as untimely.
. If the record evidence ultimately reveals that Alabama Blue and/or Michigan Blue do not have standing to assert these claims, the Court may, under Fed.R.Civ.P. 23(c)(1)(C), amend its Order at any time before final judgment.
. At the hearing held on March 12, 2004, Indirect Purchaser Plaintiffs' counsel posited that evidence exists to support the conclusion that Mr. Reid would have switched to the generic had it been available earlier. However, Indirect Purchaser Plaintiffs’ counsel admitted that any claim by Mr. Reid under the antitrust laws is too speculative, thereby conceding that Mr. Reid does not have standing to assert any antitrust violations on behalf of the class.
. In conceding that Mr. Reid does not have standing to assert the antitrust violations on behalf of the class, Indirect Purchaser Plaintiffs suggested that Mr. Reid does have standing for unjust enrichment claims. However, Indirect Purchaser Plaintiffs have failed to demonstrate (either in their submissions or at oral argument) how Mr. Reid, who did not pay any overcharge or suffer any economic damage, has standing to
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
. IMS monitors prescriptions, compiling data by product and by distribution channel for a number of customers, including pharmaceutical companies. As Indirect Purchaser Plaintiffs noted at the March 12, 2004 oral argument, Abbott itself also relied on IMS data to predict the impact that generic entry would have on the market. Abbott has not disputed this.
. As observed by several courts and commentators, once the good faith estimate of the class size reaches the thousands, the joinder impracticability test is satisfied and the analysis focuses on the "manageability and superiority of the proposed class action relative to other means for fair adjudication of the controversy.” See 1 Alba Conte & Herbert Newberg, Newberg on Class Actions § 3:5 (4th ed.2002). These issues will be addressed later in the Court's analysis of Fed. R.Civ.P. 23(b)(3).
. While Defendants do not contest that there are common questions of law or fact sufficient to meet the Rule 23(a)(2) requirement, they do contend that the proposed classes cannot be certified because those common issues do not predominate over questions affecting only individual class members. This argument, however, is properly considered in the Rule 23(b)(3) analysis, and will be addressed at that time.
. The Eleventh Circuit has recognized that "[i]n many ways, the commonality and typicality requirements of Rule 23(a) overlap. Both requirements focus on whether a sufficient nexus exists between the legal claims of the named class representatives and those of individual class members to warrant class certification. Traditionally, commonality refers to the group characteristics of the class as a whole and typicality refers to the individual characteristics of the named plaintiff in relation to the class.” Prado-Steiman, 221 F.3d at 1278-79 (internal citations omitted).
. While Defendants state that they challenge Indirect Purchaser Plaintiffs’ ability to meet the Rule 23(a)(3) standard, they have focused their arguments on the 23(a)(4) and 23(b)(3) elements, never clearly articulating the nature of their opposition with respect to the typicality prong. The elements of Rule 23 are overlapping and often difficult to extricate from one another. Therefore, while Defendants have asserted additional arguments that may, arguably, apply to the typicality analysis, those arguments are more appropriately considered in the Court's analysis of Rule 23(a)(4) and 23(b)(3).
. In assessing whether a realistic possibility of antagonism exists, the Eleventh Circuit has looked at the economic realities of the case to determine whether "the economic interests and objectives of the named representatives differ significantly from the economic interests and objectives of unnamed class representatives." See Valley Drug Co., 350 F.3d at 1189-90.
. While this issue was already addressed in the typicality section, it is also relevant to the analysis of the "adequacy of representation" prong, as Defendants contend that fundamental conflicts between the two types of end-payers preclude the certification of mixed consumer-TPP classes.
. Indirect Purchaser Plaintiffs also contend that the pass-on issue is "at best, an affirmative defense and may not be considered at the class certification stage." See IPPs’ Reply, at pp. 11-12. Because Defendants’ pass-on argument requires resolution of the factual issue of whether overcharges are actually passed on to premium payers, as well as the legal issue of whether the pass-on defense is viable under a given state's antitrust law, Indirect Purchaser Plaintiffs contend that consideration of this issue is premature at the class certification stage. Id. (citing In re Domestic Air Transp. Antitrust Litig., 137 F.R.D. at 696). Indirect Purchaser Plaintiffs also contend that Hanover Shoe v. United Shoe Machinery Corp., 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968), prohibits defensive use of the pass-on argument. However, in Valley Drug Co., the Eleventh Circuit disapproved of Indirect Purchaser Plaintiff's attempt to use Hanover Shoe as "a talisman warding away the requirements of Rule 23 and barring this court from exercising its duty to conduct an inquiry into whether the plaintiffs' proposed class satisfied the four requirements of Rule 23(a)." Valley Drug Co., 350 F.3d at 1192. Therefore, because the pass-on issue is relevant to the determination of whether any conflicts exist that would preclude class certification, the Court has conducted its own analysis of the record evidence upon which Defendants rely.
. Defendants also make a more general argument that conflict necessarily exists between third-party payers and consumers because third party payers will presumably seek to maximize their damages to the detriment of consumer class members. See Defs.' Opp'n, at pp. 44-45. The same argument was rejected by the Court in In re Cardizem, 200 F.R.D. at 337. "Such hypothetical conflicts regarding proof of damages are not sufficient to defeat class certification at this stage of the litigation.” Id. (citing In re NASDAQ, 169 F.R.D. at 512).
. Defendants also present this argument as a challenge to the predominance requirement of Rule 23(b)(3). There, Defendants contend that the role of PBMs creates individualized issues that preclude class treatment. In the interest of clarity and brevity, the Court will only analyze this asserted challenge in this section.
. As with other areas of their argument, Defendants’ issues regarding PBMs apply to several portions of the Rule 23 analysis. In particular, Defendants argue that: the inclusion of PBMs in the classes will require several individualized inquiries to prove impact (which relates primarily to the predominance requirement of Rule 23(b)(3)); calculating class-wide damages will be impossible in light of the PBMs (also relevant to the Rule 23(b)(3) analysis); and intra-class conflicts potentially exist between PBMs and their insurer clients (relevant to the instant Rule 23(a)(4) adequacy of representation analysis). Because these issues are, to a certain extent, inextricably intertwined, they will all be addressed in this section.
. Defendants provide two potential sources of the "risk” allegedly borne by the PBMs. First, they argue that PBMs have manipulated "spreads” between the amounts that PBMs pay to pharmacies for prescriptions and the amounts that PBMs are reimbursed by their insurer clients in order to reap unfair profits at the insurers’ expense. See DE-1052 at 4, see also Defs.’ Opp’n, at pp. 31-32. To the extent that there was an overcharge on Hytrin, Defendants argue, PBMs would have borne a portion of the overcharge as a result of the spread between their pharmacy and insurer reimbursement formulas. Id. Second, Defendants contend that PBMs with "capitated” fee arrangements— where the insurer pays the PBM a negotiated fee per member per month in exchange for the PBM bearing the responsibility for reimbursing all covered claims — bear the risk of any overcharges and also shield the insurer from any such overcharges. Id.
. On the "spread" issue, Defendants primarily rely on two recently filed state court complaints in California and Ohio. See DE-1052 at pp. 4-6. In those two cases, the plaintiffs merely alleged what Defendants argue here, that such spreads existed, resulting in PBMs like Medco reaping improper benefits from their processing of Hytrin prescriptions. Id. However, Defendants' assertion that "the very existence of the two lawsuits demonstrates an actual conflict among putative class members on these issues," see id. at p. 6, is incorrect. As noted above, a party seeldng to demonstrate a fundamental class conflict must either cite to record evidence establishing an actual disagreement or conflict, or provide a sufficient basis for the court to imply that a realistic possibility of antagonism exists. See Miles, 916 F.2d at 1534. The existence of untested allegations in two stale court complaints satisfies neither standard.
. Defendants argument that Dr. Hartman’s proposed methodologies for calculating class-wide damages fails to account for the exclusion of flat co-paying insurers will be addressed in connection with the Court’s Rule 23(b)(3) analysis. See Section III.C.l below.
. As with the flat co-payers, Defendants lead into their Rule 23(b)(3) challenge on the predominance issue by arguing that Dr. Hartman’s methodology fails to account for brand loyalists. Specifically, Defendants contend that Dr. Hartman has not quantified how many brand loyal consumers are in the proposed classes, and that he has not proposed any method to determine this information without individualized inquiries. Again, these issues, which overlap somewhat with the instant Rule 23(a)(4) conflicts analysis, are more appropriately addressed as part of the Court’s Rule 23(b)(3) analysis. See Section III.C.
. To a certain extent, the Rule 23(a)(4) analysis collapses into the Rule 23(a)(3) consideration of typicality, "because in the absence of typical claims, the class representative has no incentives to pursue the claims of the other class members.”
. The Court also notes that to the extent that they will act as representatives of the consumer class members (and state agencies who purchased Hytrin) in their states, the Attorneys General from the states of Florida and Kansas are adequate representatives who will vigorously prosecute the claims of those states’ consumers. At the March 12, 2004 oral argument, the Court inquired of the Indirect Purchaser Plaintiffs as to the precise nature of the Attorneys General’s involvement in this litigation. As explained by Barbara Smithers, Assistant Florida Attorney General, and Patricia Connors, the Chair of the Multistate Task Force of the Antitrust Division of the Florida Attorney General's office, class counsel to the Indirect Purchaser Plaintiffs has ceded the lead in representation of the consumer claims in Florida and Kansas to the Attorneys General's offices. In fact, the Attorneys General have a "co-counsel” relationship with Co-Lead Counsel. Their primary involvement, however, will be in the civil penalties damages phase of the case and in representing the interests of the individual consumers in any mediation activities.
. See generally Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) ("[C]Iass determination generally involves considerations that are 'enmeshed in the factual and legal issues comprising the plaintiffs cause of action.' ”) (quoting Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 9 L.Ed.2d 523,(1963)); id. at 469 n. 12, 98 S.Ct. 2454 (" ‘The more complex determinations required in Rule 23(b)(3) class actions entail even greater entanglement with the merits.'”) (quoting 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3911, p. 485 n. 45 (1976)); Castano v. American Tobacco Co., 84 F.3d 734, 744 (5th Cir.1996) ("Going beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to malee a meaningful determination of the certification issues.”); Huff v. N.D. Cass Co., 485 F.2d 710, 714 (5th Cir.1973) (en banc) ("It is inescapable that in some cases there will be overlap between the demands of [Rule] 23(a) and (b) and the question of whether plaintiff can succeed on the merits.”).
. Based on the controlling precedents in each state, the primary difference between the state antitrust laws and the federal statutes is that indirect purchasers, to the extent they can prove that they were injured by Defendants' conduct, have standing to prosecute the state law claims. See California v. ARC Am. Corp., 490 U.S. 93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989).
. In their papers supporting class certification, Indirect Purchaser Plaintiffs never succinctly set forth their proposed common proof on impact. However, reading the relevant submissions and exhibits in their entirety, it is apparent that the factual demonstrations listed above are the primary sources of Indirect Purchaser Plaintiffs’ proposed "generalized evidence” to prove impact.
. The standards for evaluating each of the various states classes’ unjust enrichment claims are virtually identical. Courts have recognized that
. Indirect Purchaser Plaintiffs have explained the evidentiaiy link between their antitrust and unjust enrichment claims as such: "All of the Classes' claims allege that Abbott's illegal conduct created an exclusionary, anti-competitive market for the sale of terazosin and that as a result, Plaintiffs paid too much for their prescriptions. Defendants were unjustly enriched by the illegal overcharges and equity requires disgorgement for the benefit of the Plaintiffs and the members of each of the state Classes.” See IPPs’ Mot. at p. 45.
. As part of this analysis, Dr. Hartman calculates the actual price of Hytrin minus the "but-for" price absent the illegal conduct, times the quantity that would have been purchased absent the illegal conduct. Using this formula, Dr. Hartman determines: (1) the but-for penetration rate of generic terazosin during the relevant period; (2) the but-for prices of Hytrin and generic terazosin; and (3) the price differential between actual Hytrin prices and the but-for price of its AB-rated generic bioequivalent during the class period. Dr. Hartman has determined each of these inputs and calculated actual damages, with data covering a sufficient number of transactions so as to be scientifically accurate. Dr. Hartman has also factored into his calculations the necessary variations in the industry, such as pricing and substitution rates.
. Both Rule 23(c)(1)(C), which allows for the amendment of class certification orders at any time before final judgment, and Rule 23(d), which authorizes courts to make appropriate orders to facilitate class action proceedings, provide ample avenues for the Court to deal with any potential difficulties associated with damage allocations as they may arise. In addition, while the Court acknowledges that this case has progressed further than most cases prior to the class certification ruling, the temporal proximity to trial does not mandate that the Court select a definite damages methodology, particularly in advance of any Daubert proceedings.
. See also Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 339, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980) (noting that "where it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class action device.”).
. In particular, the Court finds Indirect Purchaser Plaintiffs’ response to this argument particularly persuasive. Indirect Purchaser Plaintiffs point out that they "are not seeking to apply a single state's law to a nationwide, or even a multistate, class of purchasers, but rather to apply state law to separate state classes that include those persons who purchased Hytrin in each state.” See IPPs’ Reply, at p. 24. Therefore, each state's substantive antitrust law will apply to that particular state class' claims. As addressed in Section III.C.l above, this does not pose a manageability problem because the applicable substantive laws are virtually identical in their required elements.
. In addressing manageability arguments similar to those that Defendants assert, the Southern District of New York noted that "if individual
. As pointed out by Indirect Purchaser Plaintiffs, Defendants successfully stayed other individual and class cases in various state courts pending the outcome of the state law claims now before this Court. See DE-1021 at pp. 14-15. In support of their motions to stay, Defendants contradicted their current position, arguing that this Court is the superior forum to resolve all of the state law claims. For instance, in Daniels v. Abbott Lab., et al., Case No. 00CC04975 (Cal.), Defendants acknowledged that this Court "is uniquely positioned to reach a comprehensive and appropriate resolution of this nationwide dispute that adequately accounts for the interests of all concerned and avoids inconsistent or duplicative judgments.” In another related state court case, Asher v. Abbott Laboratories, et al., 307 A.D.2d 211, 763 N.Y.S.2d 555 (1st Dep't 2003), the New York appellate court, responding to Defendants' request to stay, agreed that this "federal action will result in a more complete disposition of the basic antitrust issues alleged." Id. Therefore, Defendants have, in essence, conceded that this class action is the superior mechanism for adjudicating these disputes.
. Although WJRB was only appointed as Co-Lead Counsel on February 18, 2004, the Court notes that the firm had previously been an active member of the Executive Committee on behalf of the end-payer classes.
. Specifically, the Court's Order [DE-1055] required Indirect Purchaser Plaintiffs to submit additional information regarding the work proposed class counsel has done in this case, counsel's knowledge of the applicable law (and particularly, the law as to damage calculation involving third-party payers of ultimate consumer drug costs), the resources counsel will commit to representing the class, and counsel's proposed terms as to attorneys fees and nontaxable costs.
. While Indirect Purchaser Plaintiffs have not provided a list of cases in which Co-Lead Counsel WJRB participated, the Court notes that members of that firm have experience as lead counsel to several Blue Cross and Blue Shield plans in national mass tort litigation, including proceedings involving breast implants and fen-phen.
. The class representatives for each state class of end-payers are identified in Section III.A., supra.
