Microsoft word - prograf class cert decision 2013 us dis lexis 62043 _april 23 2013_.rtf

In re: PROGRAF ANTITRUST LITIGATION. THIS DOCUMENT RELATES TO:
All Direct Purchaser Actions
MDL No. 2242,Master File No. 1:11-cv-10344-RWZ
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS
2013 U.S. Dist. LEXIS 62043; 2013-1 Trade Cas. (CCH) P78,367
April 23, 2013, Decided
April 23, 2013, Filed

SUBSEQUENT HISTORY: Later proceeding at In re
For Louisiana Wholesale Drug Company Inc., Consoli- Prograf Antitrust Litig., 2013 U.S. Dist. LEXIS 63594 dated Plaintiff: Andrew Aubertine, Stephanie Hines, Aubertine Draper Rose LLP, Portland, OR; Andrew PRIOR HISTORY: In re Prograf Antitrust Litig., 2013
Kelly, Craig M. Glantz, Stuart E. Des Roches, LEAD U.S. Dist. LEXIS 18592 (D. Mass., Feb. 12, 2013) ATTORNEYS, PRO HAC VICE, Odom & Des Roches, LLP, New Orleans, LA; Dan Litvin, Jonathan Gerstein, COUNSEL: [*1] For Stephen L. LaFrance Holdings,
LEAD ATTORNEYS, PRO HAC VICE, Garwin Ger- Inc., also known as SAJ Distributors, Stephen L. stein & Fisher LLP, New York, NY; John E. Fitzpatrick, LaFrance Pharmacy, Inc., also known as SAJ Distribu- III, LEAD ATTORNEY, PRO HAC VICE, Odom & tors, Consolidated Plaintiffs: David S. Nalven, Kristen Johnson Parker, Lauren G. Barnes, Thomas M. Sobol, Hagens Berman Sobol Shapiro LLP, Cambridge, MA; For Consolidated Plaintiffs, Plaintiff: Bruce E. Gerstein, Debra Gaw Josephson, Roberts Law Firm, Little Rock, LEAD ATTORNEY, PRO HAC VICE, Garwin Gerstein AR; Dianne M. Nast, Erin C. Burns, NastLaw LLC, & Fisher LLP, New York, NY; Kristen Johnson Parker, Thomas M. Sobol, LEAD ATTORNEYS, David S. Nalven Hagens Berman Sobol Shapiro LLP, Cambridge, For Burlington Drug Company Inc., King Drug Compa- MA; Dan Litvin, Garwin Gerstein & Fisher LLP, New ny of Florence Inc., Consolidated Plaintiffs: Andrew York, NY; Lauren G. Barnes, Hagens Berman Sobol Kelly, Craig M. Glantz, Stuart E. Des Roches, LEAD ATTORNEYS, PRO HAC VICE, Odom & Des Roches, LLP, New Orleans, LA; Brian D. Brooks, Smith Segura For Indirect Purchaser Plaintiffs, Plaintiff: Glen & Raphael LLP, New York, NY; David C. Raphael, Jr., DeValerio, LEAD ATTORNEY, Berman DeValerio, The Smith Foote Law Firm, LLP, Alexandria, LA; Susan Boston, MA; J. Gerard Stranch, IV, LEAD ATTOR- C. Segura, Smith Segura & Raphael, LLP, Alexandria, NEY, PRO HAC VICE, Branstetter, Stranch & Jennings, PLLC, Nashville, TN; James R. Dugan, II, LEAD AT- TORNEY, The Dugan Law Firm, New Orleans, LA; For Uniondale Chemists, Inc., Consolidated Plaintiff: Walter W. Noss, LEAD ATTORNEY, PRO HAC VICE, Lori Ann Fanning, LEAD ATTORNEY, Miller Law Scott+Scott LLP, San Diego, CA; Indira Talwani, Segal LLC, Chicago, IL; Marvin Alan Miller, LEAD AT- TORNEY, Matthew E. Van Tine, Miller Law LLC, Chi- cago, IL; David E. Kovel, PRO HAC VICE, Kirby For Astellas Pharma US, Inc., Defendant: Allison [*3] W. Reimann, LEAD ATTORNEY, Sidley Austin LLP, Chicago, IL; Benjamin J. Keith, Elizabeth Maxeiner, Eric H. Grush, James R.M. Hemmings, James W. 2013 U.S. Dist. LEXIS 62043, *; 2013-1 Trade Cas. (CCH) P78,367 Mizgala, Jana D. Jobes, LEAD ATTORNEYS, PRO R. Civ. P. 23(a) and at least one of the require- HAC VICE, Sidley Austin LLP, Chicago, IL; John W. ments of Fed. R. Civ. P. 23(b) has been met. Treece, LEAD ATTORNEY, Sidley Austin LLP - IL, The Court makes the following findings as required Chicago, IL; Richard M. Zielinski, LEAD ATTORNEY, Goulston & Storrs, Boston, MA; Elizabeth K. Levine, Goulston & Storrs, PC, Boston, MA. Pursuant to Fed. R. Civ. P. 23(c)(1)(B), the class, which shall hereinafter be denominated the "Direct Pur- JUDGES: Hon. Rya Zobel, United States District Judge.
chaser Class," is defined as follows: OPINION BY: Rya Zobel
States and its territories that purchased Prograf directly from Astellas from April 8, 2008 to December 31, 2011 (the "class ORDER CERTIFYING DIRECT PURCHASER
period"). Excluded from the class are Astellas and its officers, directors, man-agement, employees, parents, subsidiaries, AND NOW, this 23rd day of April, 2013, upon con- and affiliates, and federal governmental 1. Direct Purchaser Plaintiffs' 1 Motion Pursuant to a stipulation with Direct Purchaser Plaintiffs, Defendant Astellas Pharma, US, Inc. Plaintiffs' Motion for Class Certification ("Astellas") does not oppose the Direct Purchasers' Mo- tion for Class Certification. Furthermore, pursuant to Rule 23(a)(1), the Court finds, by a preponderance of the evidence, that the Direct Purchasers have adduced evi- dence sufficient to support their Motion, as set forth be- low. Nothing in this Order, however, shall preclude or in any way limit Astellas's right to contest or challenge lia- bility or the legal or factual sufficiency of Plaintiffs' claims for damages, nor does this Order make any find- ings or conclusions with respect to the merits of Plain- and FINDING that all requirements of Fed. R. Civ. P. 23(a) and (b)(3) have been met; it is hereby ORDERED, The Court finds that the Class is so numerous and DECREED, and ADJUDGED that said motion is geographically dispersed and the matter sufficiently complex such that joinder of all members is impractica- ble. According to the Declaration of Jeffrey J. Leitzinger, 1 The direct purchaser plaintiffs are Burlington Ph.D., the Direct Purchaser Class has 25 members. Drug Company, Inc., King Drug Company of Pursuant to Fed. R. Civ. P. 23(c)(1)(B), and in light Florence, Inc., Louisiana [*4] Wholesale Drug of the many class-wide, common issues of law and fact Company, Inc., Stephen L. LaFrance Pharmacy, identified by direct purchaser plaintiffs, the Court finds, Inc. d/b/a SAJ Distributors and Stephen L. by a preponderance of the evidence, that the class-wide LaFrance Holding, Inc., and Uniondale Chemists, claims and issues, expressed in [*6] a summary fashion 2 Astellas has agreed not to oppose Direct Purchaser Plaintiffs' Motion for Class Certifica- tion in order to streamline pretrial motions prac- tice. The parties' agreement is without prejudice to any party to litigate any issue on the merits, in-cluding but not limited to, issues pertaining to causation, injury, and damages. Nevertheless, the monopoly power is available, an if avail- Court has performed a rigorous analysis to de- termine whether each of the requirements of Fed. Astellas's monopoly power without the need to also define a relevant market 2013 U.S. Dist. LEXIS 62043, *; 2013-1 Trade Cas. (CCH) P78,367 must be defined, what that definition is; preponderance of the evidence, [*8] that each of the Direct Purchaser Plaintiffs will fairly and adequately protect the in- terests of the Direct Purchaser Class, in compliance with Rule 23(a)(4). Plaintiffs' interests do not conflict with the interests Astellas's conduct caused antitrust injury to the business or property of direct pur- er Class. All of the Direct Purchaser Class chaser plaintiffs and the members of the class, and if so, the appropriate measure proving the existence, scope and effect of Astellas's alleged anticompetitive con-duct, which allegedly led to higher prices ry-in-fact to the Direct Purchaser Class in tacrolimus, in that, but for that conduct, generic versions of tacrolimus would have Class member that wishes to opt out will thermore, class counsel are well-qualified to represent the Direct Purchaser Class in Pursuant to Fed. R. Civ. P. 23(c)(1)(B), the Court this case, given their experience in prior find, by a preponderance of the evidence that the defens- cases, and the vigor with which they have es asserted by Astellas, according to its Answer to [*7] prosecuted this action thus far. The Court Direct Purchaser Consolidated Complaint (Doc. No. 50), Sobol Shapiro LLP and Garwin Gerstein & Fisher LLP as co-lead class counsel and The Court finds, by a preponderance of the evi- dence, that the foregoing class-wide claims, issues, and defenses are questions of law or fact common to the Di- rect Purchaser Class that satisfy Rule 23(a)(2). Pursuant to Rule 23(b)(3), the Court [*9] finds, by Each of the direct purchaser plaintiffs, Burlington a preponderance of the evidence, that, in this case, com- Drug Company, Inc., King Drug Company of Florence, mon questions of law and fact predominate over ques- Inc., Louisiana Wholesale Drug Company, Inc., Stephen tions affecting only individual members. In light of the L. LaFrance Pharmacy, Inc. d/b/a SAJ Distributors and class-wide claims, issues, and defenses set forth above, Stephen L. LaFrance Holding, Inc., and Uniondale the Court finds, by a preponderance of the evidence, that Chemists, Inc., are hereby appointed representatives of the issues of the alleged antitrust violation, antitrust im- the Direct Purchaser Class for the following reasons: pact, and damages are capable of proof at trial using ev- idence that is common to the class, rather than individual to its members. Specifically, the Court finds, by a pre- proposed Direct Purchaser Class the very same manner of injury from the very same a. On the issue of antitrust violation, for themselves, and plaintiffs assert on the relevant proof of defendants' alleged course of anticompetitive conduct will not that they assert for the Class. The Court therefore finds, by a preponderance of the evidence, that the claims of each direct purchaser plaintiff are typical of the ry-in-fact or impact, the Leitzinger Dec- within the meaning of Rule 23(a)(3); and laration, together with prior decisions granting class certification where direct 2013 U.S. Dist. LEXIS 62043, *; 2013-1 Trade Cas. (CCH) P78,367 concentrate the claims of the Direct Purchaser Class in a single action. The Court also believes that there are few try was delayed, provide the basis for the manageability problems presented by a case such as this, Court to find, by a preponderance of the and notes that the members of the class have expressed evidence, that impact to all or nearly all no interest in individually controlling the prosecution or defense of separate actions. None has brought suit sepa- Within 20 [*11] days, Direct Purchaser Co-Lead Class Counsel shall file with the Court a motion seeking approval of a form of individual notice, for direction to each member of the Direct Purchaser Class by first class United States mail, of the certification of the Direct Pur- laration of Jeffrey J. Leitzinger, Ph.D., chaser Class. The Court hereby finds, by a preponder- ance of the evidence, that such method is the best practi- class certification where direct purchasers cable under the circumstances. Lead Direct Purchaser Class Counsel's proposed notice shall comply in all re- spects with Fed. R. Civ. P. 23(c)(2)(B), and shall be ac- layed, provide the basis for the Court to companied by a form of order which, if signed and en- find that it will be feasible to calculate tered by the Court, would direct completion of the provi- sion of such notice within 60 days of such entry. er Class as a whole using well-established methodologies, including the "before and after" method. Also pursuant to Rule 23(b)(3), the Court finds, by a preponderance of the evidence, that a class action is su- perior to other available methods for the fair and efficient adjudication of this action. The Court believes it is de- sirable, for purposes of judicial and litigant efficiency, to

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