In re Terazosin Hydrochloride Antitrust Litigation

203 F.R.D. 551, 2001 WL 1160789
District Court, S.D. Florida·Decided September 20, 2001·No. No. 99-MDL-1317·Published·Cited by 6 cases

Opinion

ORDER GRANTING PLAINTIFFS’ CONSOLIDATED MOTION FOR CLASS CERTIFICATION

SEITZ, District Judge.

Plaintiffs Louisiana Wholesale Drug Co. [“Louisiana Wholesale”] and Valley Drug Co. [“Valley Drug”], who purchased the prescription drug Hytrin containing terazosin hydrochloride directly from Defendant Abbott Laboratories [“Abbott”], jointly request that the Court certify their proposed class of direct purchasers pursuing antitrust claims under Federal Rule of Civil Procedure 23. (See Pls.’ Mots., Civ. No. 98-3125 [D.E. No. 130], Civ. No. 99-7143 [D.E. No. 38]; Compl., Civ. No. 99-3125, at ¶ 7; Compl., Civ. No. 99-7143, at ¶ 4.) As the class action mechanism offers the most efficient method for adjudicating the direct purchasers’ suits, the Court will grant their motion and certify the class.

BACKGROUND

In late March and early April, 1998, Abbott entered into contracts with generic drug makers Geneva Pharmaceuticals, Inc. [“Geneva”], and Zenith Goldline Pharmaceuticals, Inc. [“Zenith”], to delay competition in its lucrative market for “Hytrin,” the only terazosin hydrochloride drug available in the United States for the treatment of hyperten[553]*553sion or enlarged prostate until August, 1999.1 Thereafter, Louisiana Wholesale and Valley-Drug [collectively, “plaintiffs”] filed separate class action complaints alleging that the defendants’ agreements forestalled the introduction of generic terazosin hydrochloride drugs and thereby injured them in “business or property” in violation of section four of the Clayton Act, 15 U.S.C. § 15, as well as section one of the Sherman Antitrust Act, 15 U.S.C. § 1. (See Compl., Civ. No. 98-3125, at ¶¶ 5, 48-54; Compl., Civ. No. 99-7143, at ¶¶ 1, 45-52.) In December, 2000, this Court entered partial summary judgment for the direct purchasers, concluding that the defendants’ accords were patently anti-eompetitive, unreasonable, and illegal per se under the Sherman Act. See In re Terazosin HCl Antitrust Litig. I, slip. op. at 11-12, 18-19. Of course, the direct purchasers must still prove that those accords affected them, and to promote that objective, they have jointly proposed that the Court adjudicate their lawsuits as a class action.

DISCUSSION

Invoking the interests of judicial economy, the plaintiffs have moved to certify the following class: “All persons who have directly purchased terazosin hydrochloride from Abbott at any time during the period March 31, 1998, through the time when the illegal agreements have terminated.” (Pls.’ Mem., Civ. No. 98-3125 [D.E. No. 130] at 10; Pis.’ Reply, Civ. No. 98-3125, at 6.) The defendants contend, however, that “class treatment is far from superior under the circumstances of this case.” (Defs.’ Opp’n, Civ. No. 98-3125 [D.E. No. 239] at 56.) As the plaintiffs bear the burden of satisfying the requirements for a class action under Federal Rule of Civil Procedure 23, subsections (a) and (b)(3), see Gilchrist v. Bolger, 733 F.2d 1551, 1556 (11th Cir.1984), the Court will address those provisions in turn.

1. Plaintiffs Have Satisfied the Prerequisites of Federal Rule 23(a)

At the outset, the plaintiffs must demonstrate that the preconditions for a class action are present in this case. In short, they must show that a sizable number of plaintiffs are raising common questions of law or fact, and that one or several of those plaintiffs raising these questions can fairly represent the rest. The defendants have not seriously contested these issues; the record clearly favors the plaintiffs.

A. Numerosity

The first prerequisite for maintaining a class action under Federal Rule 23(a) is that the class is so large that joinder is impracticable. Fed. R. Civ. P. 23(a)(1). To meet this requirement, plaintiffs need not prove the exact size of the proposed class, but they must demonstrate that the number is exceedingly large, rendering joinder impracticable. See, e.g., In re Disposable Contact Lens Antitrust Litig., 170 F.R.D. 524, 529 (M.D.Fla.1996).

Numerosity is practically uncontested in this case. Louisiana Wholesale and Valley Drug have obtained sales records from Abbott as well as expert testimony indicating that “the number of direct purchasers is in the hundreds, if not thousands.” (Pls.’ Mem. at 14 (citations omitted).) None of the defen dants have challenged the plaintiffs’ assertion that there are more than a thousand putative class members. (See, e.g., Tr., Sept. 10, 2001.) The identities of these direct purchasers may be “ascertained through reasonable effort” through further examination of Abbott’s business records. Earnest v. General Motors Corp., 923 F.Supp. 1469, 1473 (N.D.Ala.1996); see In re Infant Formula Antitrust Litig., MDL No. 878, 1992 WL 503465, at *3 (N.D.Fla. Jan.13, 1992). Hence, the proposed class is sufficiently numerous that joinder is impractical. See Kreuzfeld A.G. v. Carnehammar, 138 F.R.D. [554]*554594, 599 (S.D.Fla.1991) (certifying class of 130 investors); In re Playmobil Antitrust Litig., 35 F.Supp.2d 231, 239 (E.D.N.Y.1998) (“A finding of numerosity ... is especially appropriate in antitrust actions brought under Rule 23(b)(3)”).

B. Commonality

The second prerequisite for maintaining a class action under Federal Rule 23(a) is that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). The plaintiffs have identified several common questions of law or fact, including the legality of the defendants’ agreements, whether those agreements delayed the introduction of generic terazosin hydrochloride drugs in the United States, whether the direct purchasers were harmed as a result, and what form of relief, if any, should be accorded to direct purchasers. (See Pls.’ Mem. at 15.) The Court has already visited some of these ques tions. See In re Terazosin HCl Antitrust Litig. II, slip. op. at 3-4 (discussing relief available to direct and indirect purchasers under federal law); In re Terazosin HCl Antitrust Litig. I, slip. op. at 11-12, 18-19 (concluding that defendants’ horizontal market allocation accords were illegal per se under the Sherman Act). Other common questions will be ripe at the close of discovery. Recalling 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), commonality is clearly present in this case. See In re Carbon Dioxide Antitrust Litig., 149 F.R.D. 229, 232 (M.D.Fla.1993) (“Plaintiffs allege a hori zontal conspiracy to stabilize prices in a single, fungible product____ [b]y their nature, antitrust conspiracy actions such as this one involve common questions of law or fact.”) (citations omitted);

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In re Terazosin Hydrochloride Antitrust Litigation, 203 F.R.D. 551, 2001 WL 1160789 (S.D. Fla. 2001).

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