| Kathleen W. Bradish
Health & Pharmaceuticals, Class Actions, Private Enforcement, Price Fixing
On November 21, 2025, the American Antitrust Institute (AAI) submitted an amicus brief to the Third Circuit in In re Generic Pharmaceuticals Pricing Antitrust Litigation, No. 25-2220, urging the court to affirm the district court’s order certifying a class of end-payers. The case is one of the bellwether actions in a sprawling MDL involving sweeping price-fixing allegations affecting a large number of generic drugs during the early 2010s. Classes were certified by the district court, after which some defendants settled. The remaining defendants challenged class certification in the Third Circuit, arguing that the complexity of pharmaceutical payment systems raised questions of predominance, ascertainability and superiority that made certification of end-payer classes inappropriate.
AAI’s brief warns the Third Circuit against strategic class certification challenges that allow antitrust defendants to avoid compensating victims of criminal, per se illegal conduct. AAI points out that such challenges, if successful in blocking the only viable pathway to civil relief, can have damaging effects across the interconnected U.S. antitrust enforcement system. Public and private enforcement depend on one another, both as a matter of historical design and current policy, which relies on private damage actions to provide victims of criminal antitrust violations with restitution.
AAI’s brief argues that private enforcement cannot fulfill its role if overly difficult proceedings make it too burdensome for plaintiffs to bring class actions, as expense and diffuse damages mean many private antitrust cases would never be brought without the class device. In the case of end-payers, AAI notes that artificially limiting class actions has the perverse effect of denying compensation to the only victims in a conspiracy who assuredly cannot pass on their injury. Moreover, it threatens to undermine the core purposes of the so-called Illinois Brick repealer statutes that most states have passed to ensure their end-purchaser citizens are compensated for antitrust violations.
AAI warns that defendants’ effort to overturn class certification is a strategic attempt to shield ill-gotten gains obtained through criminal conduct by exploiting the very complexity they relied on to conceal the conspiracy in the first place. The importance of avoiding a deterrence gap for such conduct, the brief explains, is underscored in this case by the undeniable harms felt at the end of the pharmaceutical supply chain. AAI cites examples in which patients dependent on the price-fixed drugs faced massive price spikes—sometimes exceeding 1,200%—forcing them to delay treatment, switch to inferior alternatives, or forego medication altogether.
The brief was written by AAI Vice President and Director of Legal Advocacy Kathleen Bradish.
Read the full brief: AAI Amicus Brief (In re Generic Pharmaceuticals Pricing Antitrust Litigation)
