Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Adderall purchasers seek class certification in generic pay-for-delay suit, (Nov 2, 2015)

By Greg Hammond, J.D.

Indirect purchasers of attention deficit hyperactivity disorder medication Adderall XR have filed a proposed report and recommendation in the federal district court in Miami that, if approved, would grant their motion for class certification in a suit alleging that the drug’s manufacturer violated the Sherman Act, Florida Antitrust Act, and Florida Deceptive and Unfair Trade Practices Act by delaying entry of generic Adderall in the market (Barba v. Shire U.S., Inc., October 30, 2015).

Shire US, Inc. and Shire, LLC manufacture and market Adderall XR. Indirect purchasers filed suit against Shire in 2013, claiming that the drug maker filed sham patent litigation and entered into reverse payment agreements with generic competitors in order to delay entry of generic Adderall in the market. The indirect purchasers have filed a renewed motion for class certification, which Shire opposed claiming: (1) the purchasers lack standing to assert their claims and cannot serve as class representatives; (2) the proposed class is not ascertainable because certain proposed class members cannot be identified and excluded; and (3) individualized damages issues predominate over common liability and damages ones.

Standing. According to the proposed report and recommendations, Shire claimed that the indirect purchasers lack standing because their claims are time-barred. The indirect purchasers disagree, noting that the district court has already concluded that the plaintiffs adequately pleaded the necessary elements to invoke the fraudulent concealment doctrine, and that evidence in the record supports fraudulent concealment tolling.

Ascertainability. The indirect purchasers next argue that self-identification-based ascertainment is administratively feasible because they identified with evidence a demonstrably reliable case-specific method for screening each self-identification—documentation, including potential class members’ pharmacy, prescription, and medical records. Shire’s claim that potential class members would not remember which pharmacies they used or what sort of prescription plans they had for Adderall are unpersuasive, the proposed report and recommendations states, because there is no evidence in the record demonstrating consumers would be unable to recall that information.

Predominance. Lastly, the proposed report, if approved, rejects Shire’s lack of predominance arguments, which focus on the manageability of distributing a class aggregate damages award or on the presence of supposed individualized damages issues. These claims, according to the indirect purchasers, were largely limited to a very small number of individuals. Moreover, the indirect purchasers seek to prove—through common evidence of expert’s and Shire’s own documents and testimony—that various side deals with generic pharmaceutical companies were reverse payments to delay entry of generic Adderall. Resolution of these issues need only be decided once as to the entire class, the proposed report states, finding that the predominance requirement is therefore satisfied.

If approved, the proposed report and recommendations would certify a class consisting of all persons who purchased (for personal or household use) and/or paid for some or all of the purchase price for brand Adderall XR in Florida between January 1, 2007, through March 31, 2009.

The case is No. 1:13-cv-21158-JAL.

Attorneys: Conlee S. Whiteley (Kanner & Whiteley LLC) for Monica Barba. David S. Shotlander (Frommer Lawrence & Haug, LLP) and Eric Christu (Shutts & Bowen LLP) for Shire US, Inc. and Shire LLC.

Companies: Shire US, Inc.; Shire, LLC

News: Antitrust FloridaNews