The judge denied class certification in this pharmaceutical pay-for-delay case brought by a class of indirect purchasers.
Retained by Haug Partners and Goodwin Procter
Indirect purchaser plaintiffs alleged that two pharmaceutical companies entered into an anticompetitive patent settlement agreement. They claimed that this resulted in the delayed availability of a generic equivalent of a branded ADHD drug, which caused inflated prices for consumers. Defense counsel for the brand manufacturer, Shire, and the generic manufacturer, Actavis, retained Cornerstone Research and James Hughes of Bates College.
Professor Hughes estimated that thousands of proposed class members would not have been injured.
Professor Hughes submitted two expert reports in opposition to class certification and testified at deposition. He identified several categories of proposed class members who would not have suffered any apparent injury from the alleged generic delay, including:
- Those who would have continued to pay for the brand drug after generic entry.
- Those whose use of Shire’s coupon programs meant they would have paid more for the generic than the brand.
- Those who would still have reached their out-of-pocket prescription maximums with earlier generic entry.
Professor Hughes estimated that thousands of proposed class members would not have been injured.
Citing Professor Hughes’s analysis of these categories of uninjured class members, a U.S. district court judge denied the plaintiffs’ motion for class certification. In her decision, the judge stated, “Identifying uninjured consumers with any degree of confidence would require an assessment of individual-specific facts such as the consumer’s insurance plan, any peculiar views about the equivalence of brand and generic Intuniv, their consumption habits when faced with similar choices between brand and generic drugs, their use of coupons, the timing of their purchases of Intuniv, and potentially other factors.”