Antitrust Law Daily Wrap Up, ANTITRUST—E.D. Pa.: No reconsideration of denial of class certification in suit over delayed generic competition of Provigil, (Aug 6, 2015)

By Linda O’Brien, J.D., LL.M.

In an action against brand and generic pharmaceutical manufacturers over the alleged delayed generic competition of the sleeping disorder medication Provigil, the federal district court in Philadelphia has declined to reconsider its denial of class certification to end payor plaintiffs. Class certification had been denied due to the plaintiffs’ failure to establish the Federal Rule of Civil Procedure 23 requirements of ascertainability, predominance, and superiority (Vista Healthplan, Inc. v. Cephalon, Inc., August 4, 2015, Goldberg, M.).

Consumers, retailers, and health plan providers (end payor plaintiffs) that purchased a sleeping disorder medication (modafinil) sold under the brand name Provigil, filed a class action suit against pharmaceutical manufacturer, Cephalon, Inc., and four generic drug manufacturers — Teva Pharmaceuticals, Ranbaxy Laboratories, Mylan Pharmaceuticals, and Barr Laboratories—for delaying generic competition to Provigil in violation of state antitrust and consumer protection laws. The plaintiffs alleged the defendants entered into reverse payment settlements to resolve patent infringement suits. In June 2015, the court denied the plaintiffs’ motion for class certification. A motion to reconsider the June 2015 order has now been denied.

Ascertainability. The rejected the plaintiffs’ argument that the court conflated predominance and ascertainability. Acertainability is a two part inquiry that requires a plaintiff to show that the class is defined with reference to objective criteria and there is a reliable and administratively feasible method for determining whether putative class members fall within the class definition, the court explained. In that context, administratively feasible means that identifying class members is a manageable process that does not require individual factual inquiry. The court noted that the predominance requirement generally assesses whether individualized inquiries will predominate common questions and evidence. However, the extent of individualized inquiry may be considered to determine whether a proposed ascertainability methodology is administratively feasible.

Moreover, the plaintiff’s expert acknowledged no methodology for identifying class members, and the plaintiffs failed to present evidence that showed a methodology of identifying class members that would be administratively feasible, in the court’s view.

Predominance. The plaintiffs’ contention that class certification was denied simply because they could not establish antitrust impact as to every member of the class was rejected. The court noted that the predominance requirement was not met since evidence revealed the presence of uninjured class members that required extensive individualized analysis.

Superiority. The plaintiffs’ argument that the court erred in not providing a separate superiority analysis on the state antitrust laws also was rejected. The plaintiffs sought certification of two classes: one class that included claims under state antitrust and consumer protection laws and the other that included state unjust enrichment claims. The court noted that the superiority analysis of the plaintiffs’ consumer protection claims, which showed that the differences between the laws of the various jurisdictions would make class treatment unmanageable and were likely to confuse a jury, was the same class in which the plaintiffs sought to certify their antitrust claims. To establish superiority, a plaintiff must show that resolution by class action would achieve time and resource efficiencies and promote uniformity of decisions as to persons similarly situated without sacrificing procedural fairness. To the extent the plaintiffs sought to separately certify a stand-alone state law antitrust class, the issues identified with ascertainability, predominance, and multiple individualized inquiries would clearly cause problems with case management, the court concluded.

The case is No. 2:06-cv-1833.

Attorneys: Joseph H. Meltzer (Kessler Topaz Meltzer & Check, LLP), Kevin B. Love (Hanzman Criden & Love, PA), Lawrence Kendall Satterfield (Finkelstein Thompson LLP), and Theodore M. Lieverman (Spector Roseman Kodroff & Willis, PC) for Vista Healthplan, Inc., Pennsylvania Turnpike Commission, Pennsylvania Employees Benefit Trust Fund, and District Council 37 Health & Security Plan. Gregory P. Teran (Wilmer Cutler Pickering Hale & Dorr LLP) for Cephalon, Inc. Gregory L. Skidmore (Kirkland & Ellis), and Lathrop B. Nelson, III (Montgomery Mccracken Walker and Rhoads, LLP) for Barr Laboratories, Inc. C. Fairley Spillman (Akin Gump Strauss Hauer & Feld LLP) and David R. Marriott (Cravath Swaine & Moore LLP) for Mylan Laboratories, Inc. Jeffrey B. Korn (Willkie Farr Gallagher LLP), Joseph E. Wolfson (Stevens & Lee) for Teva Pharmaceutical Industries, Ltd., and Teva Pharmaceuticals USA, Inc.

Companies: Vista Healthplan, Inc.; Cephalon, Inc.; Barr Laboratories, Inc.; Mylan Laboratories, Inc.; Teva Pharmaceutical Industries, Ltd.; Teva Pharmaceuticals USA, Inc.

Cases: Antitrust ConsumerProtection PennsylvaniaNews