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In re Intuniv Antitrust Litigation

United States District Court, D. Massachusetts

November 6, 2019

In re INTUNIV ANTITRUST LITIGATION (Indirect Purchasers)

          MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR RECONSIDERATION

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.

         Indirect Purchaser Plaintiffs (“IPPs”) seek reconsideration of the Court's August 21, 2019, Order [ECF No. 230] that denied their motion for class certification. [ECF No. 235]. The IPPs now request that the Court certify a class of persons who bought brand Intuniv or generic Guanfacine ER with cash or co-insurance. For the reasons discussed herein, the motion for reconsideration [ECF No. 235] is DENIED.

         I. BACKGROUND

         A more complete version of the facts is provided in the Court's August 21, 2019, Order. See In re Intuniv Antitrust Litig., No. 16-cv-12396, 2019 WL 3947262, at *1-2 (D. Mass. Aug. 21 2019); [ECF No. 230]. The IPPs moved for certification of two classes of consumers who they claim were overcharged for Intuniv because of an allegedly anticompetitive settlement agreement between Shire and Actavis (“Defendants”). [ECF No. 146]. Those proposed classes included:

The Nationwide Consumer Class: For the period beginning November 15, 2012, to the present: (A) all persons who purchased brand or generic Intuniv in the United States for personal or household use, and who paid the purchase price themselves; and (B) all persons covered by commercial health insurance who purchased brand Intuniv in the United States for personal or household use, and who paid some of the purchase price pursuant to a co-payment or co-insurance provision.
Illinois Brick Repealer Class: For the period beginning November 15, 2012, to the present, all persons in Arizona, California, Florida, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, West Virginia, Wisconsin, and the District of Columbia: (A) who paid the purchase price themselves for brand or generic Intuniv in the United States for personal or household use; and (B) all persons covered by commercial health insurance who purchased brand Intuniv in the United States for personal or household use, and who paid some of the purchase price pursuant to a co-payment or co-insurance provision.

[Id. at 1-2]. The Court determined that the IPPs had not provided a workable plan to exclude a large number of uninjured class members, including roughly 25, 000 brand loyalists, several thousand coupon-using class members, and a de minimis number of potential class members who purchased Intuniv only after reaching their out-of-pocket maximums. [ECF No. 230 at 16-17]. The Court therefore refused to certify either of the two proposed classes. [Id. at 18].

         The IPPs moved for reconsideration on September 4, 2019, arguing that the Court should have certified one subclass of potential plaintiffs consisting of consumers “who bought brand Intuniv or generic Guanfacine ER with cash or co-insurance.” [ECF No. 235 at 2]. Defendants responded on September 18, 2019. [ECF Nos. 241, 242]. On September 26, 2019, the IPPs requested leave to file a reply brief, [ECF No. 260], which Defendants opposed, [ECF No. 266]. The Court granted the motion, [ECF No. 267], and the IPPs filed their reply on October 21, 2019, [ECF No. 268].

         On September 6, 2019, the IPPs filed a petition for an interlocutory appeal with the First Circuit. Picone, et al. v. Shire U.S. Inc., et al., No. 19-8023, 2019 WL 3947262 (1st Cir. 2019). Defendants responded on September 16, 2019, and the IPPs replied on September 24, 2019. Id.

         II.DISCUSSION

         A. Jurisdiction

         Under the Federal Rules of Civil Procedure, “the proper method for challenging an adverse class certification decision prior to judgment is to seek interlocutory review . . . .” Donovan v. Phillip Morris USA, Inc., No. 06-cv-12234, 2012 WL 957633, at *5 (D. Mass. Mar. 21, 2012). Under Rule 23, “[a] court of appeals may permit an appeal from an order granting or denying class-action certification . . . [if a] party . . . file[s] a petition for permission to appeal with the circuit clerk within 14 days after the order is entered . . . .” Fed.R.Civ.P. 23(f). While seeking reconsideration from this Court, the IPPs filed a petition seeking interlocutory review with the First Circuit on September 6, 2019, which this Court has now reviewed. See Petition for Permission to Appeal, Picone, No. 19-8023 (1st Cir. Sept. 6, 2019).

         “An interlocutory appeal ordinarily suspends the power of the district court to modify the order subject to appeal, but does not oust district-court jurisdiction to continue with proceedings that do not threaten either the appeal's orderly disposition or its raison d'etre.” 16A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 3949.1 (5th ed. 2019). “[A]n appeal from either a final order or an interlocutory order made immediately appealable by statute divests a district court of authority to proceed with respect to any matter touching upon, or involved in, the appeal . . . .” United States v. Mala, 7 F.3d 1058, 1060-61 (1st Cir. 1993).

         The IPPs' petition for interlocutory appeal asks, in part, that the First Circuit remand to this Court to consider whether the class definition should be narrowed to exclude consumers with co-pays. See Petition for Permission to Appeal at 17-21, Picone, No. 19-8023 (1st Cir. Sept. 6, 2019). In other words, the petition requests the exact same relief sought in the IPPs' motion for reconsideration. See [ECF No. 235 at 3, 5-7]. In order to avoid the “danger [that] a district court and a court of appeals w[ill] be simultaneously analyzing the same judgment, ” Griggs v. Provident Consumers Disc. Co., 459 U.S. 56, 59 (1982), the Court is left with two options. The Court may either stay the proceeding pending the interlocutory appeal or deny the motion for reconsideration, so that the First Circuit and this ...


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