| Dan E. Gustafson, Joshua P. Davis
Health & Pharmaceuticals, Private Enforcement
The AAI has filed an amicus brief in In re Nexium (Esomeprazole) Antitrust Litigation, 968 F. Supp. 2d 367 (D. Mass. 2013), appeal docketed, Nos. 14-1521 & 14-1522 (1st Cir. May 15, 2014), asking the First Circuit to affirm the lower court’s holding that a class may be certifiable notwithstanding that each and every member of the class may not be injured. The brief argues that the Court should not re-interpret the Rule 23(b)(3) “predominance” requirement to create an extra-statutory “uniformity” requirement.
After the District of Massachusetts certified a class of pay-for-delay victims, the defendant pharmaceutical manufacturers appealed, arguing that recent Supreme Court precedent, including Walmart v. Dukes and Comcast v. Behrend, requires that class certification be denied where plaintiffs have not established that every victim was injured. Here, the district court accepted that some class members would not be injured because, for example, “brand loyalists” would have continued to purchase the high priced branded drug even if the generic had come to the market sooner.
The AAI brief argues that defendants’ interpretation misreads Dukes and Comcast, conflicts with other Supreme Court and circuit court precedent, and is contrary to both the statutory language of Rule 23 and sound antitrust policy. Antitrust litigation often involves many common issues, including whether defendants engaged in the alleged conduct, whether that conduct violated the antitrust laws, and whether any antitrust violation generally harmed the class. Those issues often predominate. It is thus possible—indeed, routine—for common issues to predominate in litigation and at trial, even if some individual issues arise in assessing whether some class members suffered harm and even if some class members suffered no injury at all. Requiring plaintiffs to establish at class certification that every class member was injured would preclude many class actions and thereby thwart the compensation and deterrence goals of the antitrust laws, while compromising accuracy and efficiency in antitrust litigation.
The brief was written by AAI Advisory Board member Josh Davis of the University of San Francisco School of Law, with assistance from AAI Advisory Board member Dan Gustafson of Gustafson Gluek PLLC.
