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In re Zetia Ezetimihe Antitrust Litig.

United States District Court for the Eastern District of Virginia, Norfolk Division

June 18, 2020, Decided; June 18, 2020, Filed

MDL No. 2:18-md-2836



Table of Contents

I. Statement of the Case

II. Analysis

 A. Rule 23(a)

  1. Numerosity

   a. Size of the Class

   i. Retailer Plaintiffs

   ii. Subsidiaries

   iii. Brand-Only Purchasers

   iv. Idiosyncratic Purchasers

   b. Practicability of Joinder

  2. Commonality

   3. Typicality

   4. Adequacy

    a. FWK

    b. RDC

   i. Deferred Prosecution Agreement

   ii. Chapter 11 Bankruptcy Filing

  5. Ascertainability

 B. Rule 23(b)

  1. Predominance

   a. Violation of Antitrust Laws

   b. Antitrust Impact

   c. Measurable Damages

  2. Superiority

 C. Rule 23(g)

III. Conclusion and Recommendation

IV. Review Procedure

Before the court are Direct Purchaser Plaintiffs' ("DPPs")1 Motion for Class Certification, ECF No. 735, and Motion to Modify Their Class Definition, ECF No. 812. Defendants Merck2 and Glenmark3 oppose the first motion but not the second. For the reasons explained in greater detail below, I recommend that the court GRANT the Motion to Modify and GRANT IN PART the Motion for Class Certification.

I. Statement [*11]  of the Case

The allegations underlying this multidistrict litigation have been set forth in great detail by this court in previous opinions.4 I therefore provide only a brief summary here. DPPs allege that Merck and Glenmark entered into an unlawful reverse payment settlement agreement,5 which resulted in artificially inflated prices for the brand drug Zetia (ezetimibe) and its generic equivalents. DPPs' Am. Consolidated Class Action Compl. ("DPPs' Am. Compl.") ¶¶ 1-7, 184-221 (ECF Nos. 253-1 (sealed), 315 (public)). Specifically, Glenmark, a generic drug manufacturer, agreed to refrain from launching the market's first generic version of Zetia - a blockbuster drug manufactured by Merck - for a period of roughly five years, providing Merck between $ 5.7 and $ 8.3 billion in additional Zetia sales. Id. ¶¶ 4, 193, 220-21. In exchange, Merck agreed to drop patent infringement claims against Glenmark and to abstain from introducing its own generic version of Zetia (an "Authorized Generic") during the initial 180-day exclusivity period following Glenmark's generic entry, ensuring Glenmark's sole-generic-provider status. Id. ¶¶ 4-5, 193, 198, 201. This type of agreement is referred to as a [*12]  "No Authorized Generic" or "No-AG" agreement. Id. ¶¶ 4, 193. And in this case, according to DPPs, Defendants' No-AG agreement resulted in an $ 800 million payment to Glenmark and supracompetitive purchase prices for both brand and generic Zetia. Id. ¶¶ 4, 6-7, 226, 270. Defendants vigorously dispute this characterization of the settlement.

On November 18, 2019, DPPs, one of three plaintiff groups, moved to certify the following proposed class:

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2020 U.S. Dist. LEXIS 112331 *



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