In re Nexium (Esomeprazole) Antitrust Litigation

296 F.R.D. 47, 87 Fed. R. Serv. 3d 219, 2013 WL 6486917, 2013 U.S. Dist. LEXIS 173353
District Court, D. Massachusetts·Decided December 11, 2013·No. Civil Action No. 12-md-02409-WGY·Published·Cited by 13 cases

Opinion

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

This case presents a multidistrict, putative class action against AstraZeneca AB, Aktiebolaget Hassle, and AstraZeneca LP (collectively, “AstraZeneca”), Ranbaxy Pharmaceuticals, Inc., Ranbaxy Inc. and Ranbaxy Laboratories, Ltd. (collectively, “Ranbaxy”); Teva Pharmaceutical Industries, Ltd. and Teva Pharmaceuticals USA, Inc. (collectively, “Teva”); and Dr. Reddy’s Laboratories Ltd. and Dr. Reddy’s Laboratories, Inc. (collectively, “Dr. Reddy’s”) (collectively, with Ranbaxy and Teva, the “Generic Defendants”) (collectively, with AstraZeneca, the “Defendants”) for alleged violations of federal antitrust laws involving [51]*51AstraZeneca’s heartburn medication, Nexi-um. This opinion addresses a motion for class certification of the Direct Purchaser plaintiffs. The putative Direct Purchaser class is comprised of wholesalers and retailers that purchased brand drug Nexium directly from AstraZeneca and that “will purchase generic Nexium directly from one or more of other Generic Defendants.” Consolidated Am. Compl. & Demand Jury Trial (“Direct Purchasers Compl.”), ¶ 19, ECF No. 131. They move for class certification under Federal Rules of Civil Procedure (“Rules”) 23(a) and (b)(3). Id. ¶ 19-23, 38.

II. ANALYSIS

The Defendants raise many of the same challenges to the Direct Purchasers’ motion for class certification as they did against the End-Payors. Compare Defs.’ Opp’n Direct Purchasers Class Pis.’ Mot. Class Certification (“Defs.’ Opp’n”), ECF No. 377, with Defs.’ Mem. Law Opp’n End-Payor Pis.’ Mot. Class Certification (“Defs.’ End-Payor Mem.”), ECF No. 376. On November 14, 2013, the Court granted the End-Payors class certification. Mem. & Order, ECF No. 519. Noting that the same analysis applies with full force and effect to the Direct Purchaser class, the Court here focuses on those matters germane to the Direct Purchasers.

A. Rule 23(a)(1): Numerosity of the Class

In a motion for class certification, the moving party must establish the four threshold requirements under Rule 23(a). Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2548, 180 L.Ed.2d 374 (2011). Unlike their opposition to the End-Payors’ motion for class certification, here the Defendants strongly contest whether the Direct Purchaser plaintiffs satisfy the numer-osity requirement. See Defs.’ Opp’n 6-13. Numerosity requires the class to be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a). Courts have generally held that classes exceeding forty plaintiffs are deemed sufficient, although courts within this circuit have certified classes with sizes similar to that presented here. See, e.g., In re Prograf Antitrust Litig., No. 1:11-cv-10344-RWZ, 2013 WL 2395083, at *1 (D.Mass. Apr. 23, 2013) (Zobel, J.) (certifying a class of twenty-five pharmaceutical wholesalers); In re Citigroup, Inc. Capital Accumulation Plan Litig., No. 00cv11912-NG, 2010 WL 9067986, at *8-10 (D.Mass. Jan. 6, 2010) (Gertner, J.), aff'd, 652 F.3d 88 (1st Cir.2011) (certifying a subclass of twenty participants in an employee stock compensation program).

1. Class Below Forty Members

The expert for the named Direct Purchasers, Dr. Raymond Hartman, measures the putative class according to two “but-for” generic entry dates, April 14, 2008 and January 1, 2012, resulting in either thirty-one or twenty-six class members, respectively. Notice Filing Unredacted Copy Deck Raymond S. Hartman Supp. Certification Class Direct Purchasers Nexium, Ex. 1, Deck Raymond S. Hartman Supp. Certification Class Direct Purchasers Nexium (“Hartman Decl.”), ¶¶ 37, 65, ECF No. 401-1. The Court however, adopts the Defendants’ figures of twenty-nine or twenty-four members, which account for the consolidation of two entities with their parent corporations. Deck Thomas A. Isaacson Supp. Defs.’ Opp’n Direct Purchaser Class Pis.’ Mot. Class Certification (Dkt. No. 266), Ex. 1, Expert Report Dr. John H. Johnson, IV Direct Purchaser Class Certification, (“Johnson Rpt.”) ¶ 11 n. 11, ECF No. 356-1.

While the Defendants point out that this range falls well below the suggested threshold of forty members, Defs.’ Opp’n 8, (citing García-Rubiera v. Calderón, 570 F.3d 443, 460 (1st Cir.2009) and In re Relafen Antitrust Litig., 218 F.R.D. 337, 342 (D.Mass. 2003), which relied on the suggested number of forty class members to satisfy numerosity), it is clear that district courts have taken a more flexible approach to the numerosity analysis. The named Direct Purchasers cite to cases from this circuit, and to numerous cases from other circuits, to demonstrate the frequency with which courts have certified classes of fewer than forty members. Reply Br. Further Supp. Direct Purchaser Class Pls.’ Mot. Class Certification (“Pls.’ Reply [52]*52Brief’), 4-5 nn. 11-13, ECF No. 395. For example, in a multidistrict generic delay case in this district, Judge Rya Zobel, after a “rigorous analysis” under the requirements of Rule 23(a), certified a class of twenty-five pharmaceutical wholesalers suing as direct purchasers. In re Prograf Antitrust Litig., 2013 WL 2395083, at *1 n. 2. In another generic delay case, a class of thirty-three direct purchasers was certified “[b]eeause of the complexity and sheer volume of discovery in this case and because the 33 direct purchasers are located across the country.” In re Wellbutrin XL Antitrust Litig., Civ. Action No. 08-2431, 2011 WL 3563385, at *3 (E.D.Pa. Aug. 11, 2011).

The test for numerosity requires the Court to address the question of whether “joinder of all members is impracticable.” Fed. R.Civ.P. 23(a)(1). The reasoning of this Court in a recent case is instructive. This Court, in Liberty Media Holdings, LLC v. Swarm Sharing Hash File, 821 F.Supp.2d 444 (D.Mass.2011), held that permissive joinder of thirty-eight defendants was proper under Rule 20. See id. at 451-52. The moving plaintiffs in Liberty Media met the dual requirements for Rule 20: first, their claims arose from the “same transaction or occurrence,” because all defendants were “part of a BitTorrent swarm that infringed upon Liberty Media’s rights by collectively downloading and distributing its copyrighted Motion Picture file,” id. at 451; and second, their copyright infringement claims involved “common questions of law and fact” that were identical against all defendants. Id. Even though “certain defendants may later present different factual circumstances to support individual legal defenses, at this stage in the litigation, joinder is proper based on the common questions of law and fact____” Id. The Court’s joinder analysis in Liberty Media, relying on non-numeric factors like “same occurrence” and commonality, provides a comparative line of reasoning to the present question — whether numerosity is met.

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In re Nexium (Esomeprazole) Antitrust Litigation, 296 F.R.D. 47, 87 Fed. R. Serv. 3d 219, 2013 WL 6486917, 2013 U.S. Dist. LEXIS 173353 (D. Mass. 2013).

296 F.R.D. 47 (In re Nexium (Esomeprazole) Antitrust Litigation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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