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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