Court Grants Class Certification of End-Payor and Direct Purchaser Classes in Nexium Antitrust Litigation

The United States District Court for the District of Massachusetts, the Honorable William G. Young presiding, has issued decisions on class certification in a case in which Plaintiffs allege that Defendants violated state and federal antitrust laws by delaying the entry of generic Nexium to the market by entering into anticompetitive agreements to keep generic Nexium off the market. The case is captioned, In re Nexium (Esomeprazole) Antitrust Litigation, Civil Action No. 12-md-02409-WGY, D. Mass. On November 14, 2013, the Court issued a decision addressing class certification for the End-Payor class and certified the following liability and damages class under Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure:

All persons or entities in the United States and its territories who purchased or paid for some or all of the purchase price for Nexium or its AB-rated generic equivalents in Arizona, California, Florida, Iowa, Kansas, Massachusetts, Maine, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Utah, Vermont, West Virginia, Wisconsin and the District of Columbia, in capsule form, for consumption by themselves, their families, or their members, employees, insureds, participants, or beneficiaries, during the period April 14, 2008 through and until the anticompetitive effects of Defendants’ unlawful conduct cease. For purposes of the Class definition, persons or entities “purchased” Nexium or its generic equivalent if they paid or reimbursed some or all of the purchase price.

Among other groups, the Court specifically excluded pharmacy benefit managers from the Class. The Class applies to the End-Payors’ challenges against the reverse payment agreements made between AstraZeneca and Teva; and AstraZeneca and Dr. Reddy’s. The Court denied certification with respect to the injunctive class under Rule 23(b)(2), finding that declaratory and injunctive relief will not provide an adequate remedy in this case.

On December 11, 2013, the Court granted the Direct Purchasers’ Motion for Class Certification under Fed. R. Civ. P. 23(a) and (b)(3). The Court certified the following class:

All persons or entities in the United States, including U.S. territories, who purchased branded Nexium directly from AstraZeneca at any time during the period August 27, 2008, through the date the Court enters an order certifying the class. Excluded from the Class are the Defendants, their officers, directors, management, employees, subsidiaries, and affiliates, and all federal governmental entities.

With respect to adequacy of representation, defendants challenged whether assignees of direct purchaser claims can be included in the proposed class and serve as class representatives. The Court determined that assignees could properly be class representatives. The Court found that predominance was established because the Direct Purchasers sufficiently established antitrust impact and damages common to the class. The Court also concluded that a class action is superior to other methods, noting that complete joinder of the Direct Purchaser class is impracticable and the desire to concentrate the litigation in a single forum.

Notice of these certified classes is in process. Defendants have filed Petitions for Permission to Appeal from the class certification orders pursuant to Rule 23(f). A trial in this case is scheduled for March 3, 2014.