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In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices & Antitrust Litig.

United States District Court for the District of Kansas

February 27, 2020, Decided; March 10, 2020, Filed

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

Opinion

MEMORANDUM AND ORDER

Class plaintiffs filed a motion for class certification (Doc. 1353), seeking to represent five classes of end-payors in the United States who paid or reimbursed others for some or all of the purchase price of branded or authorized generic EpiPens. Plaintiffs allege that the Mylan defendants (composed of Mylan N.V., Mylan Specialty, L.P., Mylan Pharmaceuticals, Inc., and Mylan's CEO Heather Bresch) as distributors of the EpiPen, and the Pfizer defendants (composed of Pfizer, Inc., King Pharmaceuticals, Inc., and Meridian Medical Technologies, Inc.) as manufacturers of the EpiPen, have maintained a monopoly over the epinephrine auto-injector ("EAI") market and its profitable revenues by devising an illegal scheme to monopolize the market for EAI devices. For the reasons explained below, the court grants the motion in part and denies it in part.

The Consolidated Class Action Complaint ("Class Complaint") (Doc. 60) asserts the collective [*28]  claims of five consumer class cases transferred by the Judicial Panel on Multidistrict Litigation.1 The Class Complaint asserts federal and state antitrust claims, federal RICO Act violations, various state consumer protection law violations, and unjust enrichment claims. The Class Complaint asserts its claims against the two groups of defendants who either sell or manufacture the EpiPen, the Mylan defendants and the Pfizer defendants. When referring to both sets of defendants, this Order calls them, collectively, "defendants."

TABLE OF CONTENTS

I. Factual Background

II. Procedural History

III. Legal Standard

IV. Discussion

A. Proposed Class Definitions

B. Proposed Class Exclusions

C. Class Certification Under Rule 23

1. Ascertainability

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2020 U.S. Dist. LEXIS 40789 *; 2020-1 Trade Cas. (CCH) P81,128

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

Subsequent History: Petition denied by, Motion granted by Pfizer, Inc. v. All Plaintiffs, 2020 U.S. App. LEXIS 22856 (10th Cir., May 26, 2020)

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

CORE TERMS

certification, consumers, predominance, classwide, calculation, payors, uninjured, antitrust, causation, third-party, ascertainability, branded, switch, settlements, injunctive, collateral, unjust, entities, enrichment, Reply, patent, aggregate, but-for, defeat, rebates, reimbursement, Sur-reply, formulary, estimate, methodology

Civil Procedure, Pleading & Practice, Motion Practice, Content & Form, Opposing Memoranda, Supporting Memoranda, Special Proceedings, Class Actions, Certification of Classes, Prerequisites for Class Action, Judicial Officers, Judges, Discretionary Powers, Prerequisites for Class Action, Commonality, Predominance, Remedies, Injunctions, Judgments, Declaratory Judgments, Federal Declaratory Judgments, Evidence, Burdens of Proof, Allocation, Class Members, Justiciability, Standing, Injury in Fact, Numerosity, Typicality, Antitrust & Trade Law, Racketeer Influenced & Corrupt Organizations, Claims, Fraud, Adequacy of Representation, Superiority, Torts, Damages, Collateral Source Rule, Initial Burden of Persuasion, Burdens of Production, Injunctions, Grounds for Injunctions, Irreparable Harm, Class Members, Named Members, Personal Stake, Constitutional Law, Case or Controversy, Particular Parties, Private Actions, Claims, Types of Evidence, Testimony, Expert Witnesses, Trials, Jury Trials, Province of Court & Jury, Weight & Sufficiency, Regulated Practices, Private Actions, Multiple Defendants, Concerted Action, Civil Conspiracy, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation, Contracts Law, Equitable Relief, Quantum Meruit, Grounds for Injunctions, Class Attorneys, Appointments, Notice of Class Action