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In re Restasis (Cyclosporine Opthalmic Emulsion) Antitrust Litig.

United States District Court for the Eastern District of New York

May 5, 2020, Decided; May 5, 2020, Filed

18-MD-2819 (NG) (LB)

Opinion

OPINION AND ORDER ON END-PAYOR PLAINTIFFS' MOTION FOR CLASS CERTIFICATION

GERSHON, United States District Judge:

I. INTRODUCTION

II. BACKGROUND

A. Factual Background

B. Procedural Background

III. LEGAL STANDARD

IV. ANALYSIS

A. Requirements of Rule 23(a)

1. Numerosity

2. Commonality

3. Typicality

4. Adequacy of Representation

B. Requirements of Rule 23(b)(3)

1. Predominance

a) Elements of an Antitrust Claim

b) Whether, When Some Class Members

Are Uninjured, Plaintiffs Can

Show Injury-in-Fact

Through Common Proof

(1) Whether a Class May

Contain Uninjured Consumers

(2) Consumers Who Would Have

Purchased Only the Brand in

the But-For World

(a) Dr. Frank's Methodology

to Predict But-For

Brand Retention

(b) Plaintiffs' Methodology

to Remove Brand Retainers

from the Judgment

(c) Defendant's [*9]  Argument That

Individual Inquiries

Are "Likely Impossible"

(3) Consumers with Flat

Copayment Plans

(4) Consumers Who Used

Coupon or Copayment

Assistance Programs

(5) Consumers Who Would

Have Purchased a Different

or No Brand Drug in the

But-For World

(6) Potentially Uninjured

Third-Party Payors

c) Plaintiffs' Aggregate

Damages Proposal

d) Predominance Concerns Raised

by Multiple State Laws

(1) Choice-of-Law Analysis

(2) Proof of Antitrust Impact

(3) Vermont

(4) Scienter - Arkansas & Colorado

(5) Enhanced Damages

(6) State Law Bans on Class Actions

2. Superiority

C. Ascertainability

V. APPOINTING CLASS COUNSEL AND

CLASS REPRESENTATIVES

VI. CONCLUSION

I. INTRODUCTION

This case, brought as a class action, involves allegations that defendant Allergan, Inc., a pharmaceutical company, took several unlawful actions to delay the market entry of generic versions of its product Restasis (cyclosporine ophthalmic emulsion). The named plaintiffs are entities that provide prescription drug coverage for Restasis to their members.1 These End-Payor Plaintiffs ("plaintiffs" or "EPPs") allege that, if a generic version of Restasis had entered the market, it would have cost significantly less than what they paid for brand Restasis [*10]  and that they were damaged by paying overcharges. EPPs now seek certification under Federal Rules of Civil Procedure 23(a) and 23(b)(3) of a class of all end-payors, including consumers. For the reasons set forth below, plaintiffs' motion for class certification is granted.

Plaintiffs also move under Federal Rule of Evidence 702 to exclude the testimony of two of defendant's expert witnesses offered on this motion. Today, I separately issue a decision granting those motions (the "Daubert Decision").

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2020 U.S. Dist. LEXIS 82725 *

IN RE RESTASIS (CYCLOSPORINE OPHTHALMIC EMULSION) ANTITRUST LITIGATION; THIS DOCUMENT APPLIES TO: ALL END-PAYOR PLAINTIFF CLASS CASES

Prior History: In re Restasis (Cyclosporine Ophthalmic Emulsion) Anti. Litig., 289 F. Supp. 3d 1332, 2018 U.S. Dist. LEXIS 17210 (J.P.M.L., Jan. 31, 2018)

CORE TERMS

consumers, brand, certification, uninjured, predominance, antitrust, but-for, prescription, methodology, classwide, predicted, aggregate, penetration, forecasts, calculations, overcharge, retention, copayment, end-payor, coupon, defeat, injury-in-fact, pharmaceutical, choice-of-law, quotation, entities, scienter, manufacturers, appointed, rebates