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In re Epipen Epinephrine Injection

United States District Court for the District of Kansas

March 10, 2020, Decided; March 10, 2020, Filed

MDL No: 2785; Case No. 17-md-2785-DDC-TJJ



The court previously placed on the CM/ECF docket as sealed orders the Memorandum and Order (Doc. 2018), ruling the plaintiffs' Motion for Class Certification (Doc. 1353), and the Memorandum and Order (Doc. 2017), ruling motions filed by plaintiffs and defendants seeking to exclude certain expert testimony offered either to support or oppose plaintiffs' Motion for Class Certification. The court also notified the parties that it intended to place both Memoranda and Orders in their entirety, unsealed, on the public CM/ECF docket unless the parties identified portions of them that warranted limited access. See Notice of Unsealing and Order (Doc. 2019).

On March 6, 2020, the parties filed jointly a "Notice of Parties' Views on Proposed Sealing Requests for ECF Nos. 2017 and 2018" (Doc. 2024-1).1 In that Notice, the parties advise that they don't ask the court to restrict access to any portion of the Memorandum and Order (Doc. 2017) ruling the motions to exclude experts. In light of that agreement, the court will direct the Clerk of the Court to unseal this document, placing the entire Memorandum and Order (Doc. 2017) on the public CM/ECF docket.

With respect [*37]  to the Memorandum and Order ruling the class certification motion (Doc. 2018), Mylan asks the court to restrict access to just one portion of that Order. Pfizer makes no separate request to restrict access to any portion of the Memorandum and Order, but it agrees with Mylan's request to seal the particular portion of the Memorandum and Order that Mylan asks the court to seal. Plaintiffs ask the court to reject Mylan's request, and they ask the court to file the Memorandum and Order ruling the class certification motion on the public CM/ECF docket in its entirety.

Specifically, Mylan asks the court to keep under seal two citations to internal Mylan documents discussing Mylan's switch from selling the EpiPen in a single dose to selling it only as a 2-Pak. Mylan contends that these citations contain confidential information about its business strategy that, if disclosed, would harm its competitive standing. Mylan argues that the court previously allowed the parties to file these documents under seal as exhibits to the class certification briefing. See Doc. 1477 at 2 (granting a request to file under seal Exhibits 68 and 85). It asserts that neither document was made public at the June [*38]  2019 certification hearing. And, Mylan contends, the court should allow this information to remain under seal because it includes "sources of business information that might harm a litigant's competitive standing" which qualify for sealing under the governing case law. Nixon v. Warner Commc'ns, Inc., 435 U.S 589, 598 (1978) (citations omitted). Thus, Mylan contends, it has satisfied its burden to rebut the presumption of access to judicial records by demonstrating that "countervailing interests heavily outweigh the public interests in access." Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (citation and internal quotation marks omitted).

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2020 U.S. Dist. LEXIS 40975 *; 2020-1 Trade Cas. (CCH) P81,127; 2020 WL 1180550

IN RE: EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices and Antitrust Litigation (This Document Applies to Consumer Class Cases)

Prior History: In re EpiPen Mktg., 268 F. Supp. 3d 1356, 2017 U.S. Dist. LEXIS 121974 (J.P.M.L., Aug. 3, 2017)


seal, certification, unseal