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In re Thalomid & Revlimid Antitrust Litig.

United States District Court for the District of New Jersey

October 30, 2018, Decided; October 30, 2018, Filed

Civil Action No. 14-6997

Opinion

ARLEO, UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court by way of Class Plaintiffs International Union of Bricklayers and Allied Craft Workers Local Health Fund ("IUB"), International Union of Operating Engineers Local 39 Health and Welfare Trust Fund ("Local 39"), The Detectives' Endowment Association, Inc. ("DEA"), David Mitchell ("Mitchell"), City of Providence, and New England Carpenters Health Benefits Fund's ("NEC" and, collectively, "Plaintiffs") Motion for Class Certification and Appointment of Class Counsel. ECF No. 149. Defendant [*3]  Celgene Corporation ("Defendant" or "Celgene") opposes the motion. ECF No. 182.

To summarize, this motion seeks to certify a class of consumers and third parties that were allegedly overcharged because Defendant delayed entry of generic versions of its branded drugs onto the market. The crux of Defendant's argument against certification is that the complicated purchasing relationships in the pharmaceutical industry render it impossible to either ascertain membership in the proposed classes or prove that common issues predominate. Plaintiffs contend that the obstacles to certification raised by Defendant are speculative and hypothetical and that there is abundant proof of class membership and common injury. Nevertheless, the Court agrees with Defendant that Plaintiffs have not, at this point, carried their burden with regard to certification. The Court does not find that the concerns raised by Defendant are so pervasive as to render certification impossible, assuming Plaintiffs can address the issues discussed herein. Consequently, the Court will DENY the motion without prejudice to renew with appropriate supplementation.

I. BACKGROUND

The Court discussed in detail the extensive factual [*4]  allegations involved in this case when it denied Defendant's motion to dismiss. ECF Nos. 67, 68. In brief, this case involves claims that Celgene delayed the entry of generic versions of the drugs Thalomid and Revlimid—the generic names are thalidomide and lenalidomide, respectively—by listing and suing to enforce invalid patents, refusing to sell samples necessary to develop generics, and encouraging the FDA to reject generic applications based on sham safety concerns. Plaintiffs contend that these anticompetitve actions allowed Celgene to successfully monopolize the market for thalidomide based drugs for seven years, charge supracompetitive prices, and prevent the entry of generic manufacturers into the market. Plaintiffs further contend that these actions unjustly enriched Celgene by $5.8 billion in profits.

As a result of Celgene's alleged behavior, Plaintiffs seek certification of three classes: (1) the "Antitrust/Consumer Protection Damages Class" under Federal Rule of Civil Procedure 23(b)(3), (2) the "Unjust Enrichment Damages Class" under Rule 23(b)(3), and (3) the "Injunction Class" under Rule 23(b)(2). Defendants oppose certification of all three classes, contending that (1) neither of the damages classes are ascertainable, that (2) Plaintiffs [*5]  cannot demonstrate predominance, that (3) Plaintiff Mitchell does not satisfy the adequacy or typicality requirements of Rule 23(a), and (4) that the injunction class cannot be certified because the relief sought is primarily monetary.

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2018 U.S. Dist. LEXIS 186457 *; 2018-2 Trade Cas. (CCH) P80,574

IN RE THALOMID AND REVLIMID ANTITRUST LITIGATION

Notice: NOT FOR PUBLICATION

Prior History: In re Thalomid & Revlimid Antitrust Litig., 2015 U.S. Dist. LEXIS 177541 (D.N.J., Oct. 29, 2015)

CORE TERMS

damages, consumers, generic, class member, brand, ascertainability, sponsor, purchases, insured, certification, pharmacy, contends, predominance, prescription, records, individualized, entities, unjust enrichment, estimates, Plaintiffs', co-pay, class action, antitrust, drugs, class-wide, class certification, variations, health insurer, membership, reliable

Civil Procedure, Special Proceedings, Class Actions, Certification of Classes, Prerequisites for Class Action, Prerequisites for Class Action, Numerosity, Commonality, Adequacy of Representation, Justiciability, Standing, Burdens of Proof, Remedies, Injunctions, Class Attorneys, Predominance, Contracts Law, Equitable Relief, Quantum Meruit, Antitrust & Trade Law, Consumer Protection, Deceptive & Unfair Trade Practices, State Regulation, Superiority, Pensions & Benefits Law, Disclosure, Notice & Reporting, Required Reports, Summary Plan Descriptions