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In re Lamictal Direct Purchaser Antitrust Litig.

United States Court of Appeals for the Third Circuit

March 9, 2020, Argued; April 22, 2020, Opinion filed

No. 19-1655

Opinion

OPINION OF THE COURT

AMBRO, Circuit Judge,

This case is the latest in the years-long antitrust battle over whether GlaxoSmithKline ("GSK") and Teva Pharmaceuticals ("Teva") violated the antitrust laws through their settlement agreement to end an unrelated patent dispute over GSK's brand drug Lamictal and Teva's generic form lamotrigine. We need not reach the antitrust issues here, however, for we are concerned at present only with the District Court's class certification analysis, specifically whether common issues pertaining to the class predominate over individual issues.

Though judges must conduct a "rigorous analysis" of the facts, evidence, and arguments submitted at the class certification stage, the District Court certified this class without undertaking the analysis needed by failing to resolve key [*3]  factual disputes, assess competing evidence, and weigh conflicting expert testimony, all of which bear heavily on satisfaction of the predominance requirement. Moreover, the Court confused injury with damages, despite our precedent distinguishing the two and applying a different predominance standard to each. In this context, we cannot determine whether common issues predominate, and thus we vacate and remand for a redo.

I. FACTUAL AND PROCEDURAL BACKGROUND

GSK is a pharmaceutical manufacturer that holds the patent to an anti-epilepsy drug called Lamictal. It began selling Lamictal in 1994, and its patent was set to expire in early 2009. A patent generally excludes all other competitors from producing a drug with the same active ingredient until patent expiration. See King Drug Co. of Florence, Inc. v. Smithkline Beecham Corp., 791 F.3d 388, 394 (3d Cir. 2015).

Teva is a drug maker that manufactures a generic version of Lamictal called lamotrigine. Importantly, it sought to begin marketing lamotrigine before GSK's patent on Lamictal expired.

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2020 U.S. App. LEXIS 12899 *; 2020 U.S.P.Q.2D (BNA) 10390

In re: Lamictal Direct Purchaser Antitrust Litigation, GlaxoSmithKline, LLC d/b/a SmithKline Beecham Corporation; Teva Pharmaceuticals USA, Inc.; Teva Pharmaceuticals Industries Ltd., Appellants

Prior History:  [*1] Appeal from the United States District Court for the District of New Jersey. (D.C. Civil Action No. 2-12-cv-00995). District Judge: Honorable William H. Walls.

In re Lamictal Indirect Purchaser & Antitrust Consumer Litig., 2018 U.S. Dist. LEXIS 209993 (D.N.J., Dec. 12, 2018)

CORE TERMS

generic, district court, predominance, Purchasers, lamotrigine, prices, class certification, launched, brand, damages, Contracting, antitrust, patent, preponderance of evidence, manufacturer, settlement, averages, rigorous, class member, determinations, certification, infringement, preemptively, parties

Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Special Proceedings, Class Actions, Appellate Review, De Novo Review, Questions of Fact & Law, Certification of Classes, Prerequisites for Class Action, Prerequisites for Class Action, Adequacy of Representation, Predominance, Superiority, Typicality, Commonality, Evidence, Burdens of Proof, Allocation, Preponderance of Evidence