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On August 21, 2019, Judge Allison Burroughs of the U.S. District Court for the District of Massachusetts issued an opinion and order denying proposed consumer classes in the matter captioned In re Intuniv Antitrust Litigation. The In re Intuniv Antitrust Litigation consists of two separate cases, one brought by direct purchasers of branded and generic Intuniv® (extended release guanfacine hydrochloride), the other brought by consumers of the drug (indirect purchasers). In both cases, the plaintiffs allege that Shire (Takeda) and Actavis (Teva) settled Intuniv patent litigation via an unlawful pay-for-delay settlement which the plaintiffs claim delayed competition in brand and generic Intuniv, resulting in higher prices. The Court denied the Indirect Purchaser Plaintiffs’ Motion for Class Certification. The Court has not yet issued a ruling on the Direct Purchaser Plaintiffs’ motion.
The consumer plaintiffs sought certification of two classes: one class comprised of certain purchasers of branded and generic Intuniv nationwide, and the second limited to certain purchasers of branded and generic Intuniv within specified states. Lead by a team of attorneys from Haug Partners, the defendants opposed both classes. Judge Burroughs’s opinion included key evidentiary findings drawn from the parties’ briefing, expert reports, and expert deposition testimony, which was also presented by defense counsel at a class certification hearing in late July.
The Court found that “more than 25,000 nationwide putative class members never paid an overcharge and were therefore uninjured by Defendants’ allegedly anticompetitive conduct.” The Court identified three categories of uninjured consumers, and referring to one of those groups, found “uninjured, brand-loyal class members account for at least 8% of the class.” The Court further found that the consumer plaintiffs “have not put forth a reasonable and workable plan to weed out uninjured class members.” In light of the First Circuit’s 2018 decision in In re Asacol Antitrust Litigation, 907 F.3d 42 (1st Cir. 2018), the Court found “[w]here the [consumer plaintiffs] have failed to put forth a reasonable and workable plan to weed out the more than 10,000 uninjured class members in each putative class and Defendants intend to challenge any attestation that individual class members were injured, the IPPs have not shown that ‘questions of law or fact common to class members [will] predominate over any questions affecting only individual members,’” and denied the consumer plaintiffs’ motion. The Haug Partners team on this motion consisted of partners Michael Brockmeyer and David Shotlander.
ADHD Drug Indirect Purchasers Lose Antitrust Class Cert. Bid (Law360)