J.B.D.L. Corp. v. Wyeth-Ayerst Laboratories, Inc.

225 F.R.D. 208, 2003 U.S. Dist. LEXIS 26082, 2003 WL 23844777
CourtDistrict Court, S.D. Ohio
DecidedMay 12, 2003
DocketNo. C-1-01-704
StatusPublished
Cited by12 cases

This text of 225 F.R.D. 208 (J.B.D.L. Corp. v. Wyeth-Ayerst Laboratories, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J.B.D.L. Corp. v. Wyeth-Ayerst Laboratories, Inc., 225 F.R.D. 208, 2003 U.S. Dist. LEXIS 26082, 2003 WL 23844777 (S.D. Ohio 2003).

Opinion

ORDER

BECKWITH, District Judge.

This matter is before the Court on Plaintiff J.B.D.L. Corporation’s Motion for Class Certification (Doc. No. 28). For the reasons set forth below, Plaintiffs motion for class certification is well-taken and is GRANTED. Defendant Wyeth-Ayerst Laboratories, Inc.’s motion ■ to file a supplemental brief (Doc. No. 45) is not well-taken and is DENIED.

I. Background

In this case, Plaintiff J.B.D.L. Corporation (“J.B.D.L.”) brings antitrust claims against Defendant Wyeth-Ayerst Laboratories, Inc. (‘Wyeth”) and its parent company, American Home Products Corporation, under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2 and Sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15(a) & 26, relating to sales of [211]*211its hormone replacement therapy drug, Premarin.

Premarin is a conjugated estrogen indicated for use to alleviate vasomotor symptoms associated with female menopause. Premarin has also been approved for use to combat osteopororis. The name Premarin is derived from its primary ingredient, pregnant mare’s urine. According to the complaint, Wyeth has been manufacturing and selling Premarin since 1943 and possesses 97% of the national market share of conjugated estrogen prescription drugs. Complaint ¶¶ 14, 27.

The complaint states that there was no direct competitor of Premarin until March 1999, when Duramed Pharmaceuticals, Inc. received FDA approval to market Cenestin. Cenestin is a plant-based conjugated estrogen which also alleviates vasomotor symptoms. Complaint ¶¶ 29, 30. The complaint further states that although Cenestin has been priced 14-26% less than Premarin, Premarin has maintained a 97% share of the conjugated estrogen market. Id. ¶ 32.

The complaint alleges that Wyeth has been able to maintain this extraordinary share through the anticompetitive method of wielding market power over pharmacy benefits managers (“PBM’s”), managed care organizations (“MCO’s”), employers, and other providers of health care plans, to enter into contracts which prohibit or severely restrict these entities from offering Cenestin to covered members. Complaint ¶ 34. PBM’s establish lists of drugs, or formularies, which will be offered to persons covered by a health plan and then enter into contracts with drug manufacturers to offer their drugs to covered members at substantially reduced prices. Id. The complaint contends that Wyeth has entered into exclusive dealing contracts with PBM’s which offer rebates, discounts, and other incentives if Premarin is the only conjugated estrogen listed on the formulary. Id. ¶ 42. The effect of these contracts, says the complaint, has been to artificially restrict access to the lower-priced Cenestin and to artificially maintain Premarin above the competitive price. Id. ¶¶ 41, 49, 51.

Plaintiff J.B.D.L. Corporation (“J.B.D.L.”) is a retail pharmacy located in Sharon Hill, Pennsylvania. Complaint ¶ 8.1 J.B.D.L. purchases Premarin directly from Wyeth. Id. As a “direct purchaser” of Premarin, J.B.D.L. is not able to participate in the rebate and discount programs offered by Wyeth. Id. ¶ 43. Thus, the complaint alleges, J.B.D.L. has been forced to purchase its conjugated estrogen at prices higher than it would have had to pay in a competitive market. Id. ¶ 43, 45, 49.

On October 12, 2001, J.B.D.L. filed a complaint against Wyeth which alleges that the conduct described above violates Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 & 2.2 In addition, the complaint contains class action allegations on behalf of a potential class consisting of:

All persons or entities who purchased Premarin in the United States directly from any defendant at any time during the period March 24, 1999 through the present. (The class excludes defendant, defendants’ parents, subsidiaries and affiliates and en[212]*212tities, if such exist, which entered into contracts with any defendant which provided or were designed to insure that Premarin would be the sole and exclusive conjugated estrogen product made available to its customers.)
Complaint ¶ 18.

On March 6, 2002, J.B.D.L. filed a motion (Doc. No. 28) to certify a class consisting of:

All persons and entities who purchased (or purchase) Premarin in the United States directly from Wyeth at any time during the period from March 24, 1999 until the present.

Doc. No. 28, at 2. In its motion, J.B.D.L. argues that the class meets the requisites for certification under Rules 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure. Briefing was completed on Plaintiffs motion on September 11, 2002, although the parties have since filed supplemental briefs and authorities. In its brief in response, Wyeth opposes class certification on a number of grounds, including: 1) individual issues will predominate over classwide issues; 2) Plaintiffs will be unable to show class wide impact of the alleged anti-competitive conduct; 3) a class action is not a superior method to resolve the issues presented; 4) this case fails to satisfy the adequacy of representation and typicality requirements of Rule 23(a); and 5) J.B.D.L. does not present a workable definition for the proposed class.

II.- Analysis

A. Rule 28(a)

Rule 23(a) sets forth four requirements for the certification of a class. The proposed class representative must establish that each of the four requirements is satisfied with respect to the proposed class. See In re American Medical Systems, Inc., 75 F.3d 1069, 1079 (6th Cir.1996); Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976); Kutschbach v. Davies, 885 F.Supp. 1079, 1083 (S.D.Ohio 1995). Within the framework of Rule 23, the Court has broad discretion to determine whether an action is maintainable as a class action. See Kentucky Educators Public Affairs Council v. Kentucky Registry of Election Finance, 677 F.2d 1125, 1135 (6th Cir.1982). The four requirements are as follows:

(1) the members of the class must be so numerous that joinder of all members is impracticable (the “numerosity requirement”);

(2) questions of law or fact must be common to the entire class (the “commonality requirement”);

(3) the claims or defenses of the named representative must be typical of the claims or defenses of the class (the “typicality requirement”); and

(4) the named representative must fairly and adequately represent the interests of the class as a whole (the “adequacy of representation” requirement).

Fed.R.Civ.P.

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Bluebook (online)
225 F.R.D. 208, 2003 U.S. Dist. LEXIS 26082, 2003 WL 23844777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jbdl-corp-v-wyeth-ayerst-laboratories-inc-ohsd-2003.