Antitrust Class Action Review – 2025

plaintiffs failed to address the appropriateness of equitable relief to remedy the class’s harm, and without an assurance that such relief was “appropriate,” class certification was “necessarily improper.” Id. at *32-33. Finally, the court denied the request for certification of an issues class, finding that although the plaintiff addressed the common questions of liability that tend to attend antitrust conspiracy claims generality, the common evidence that would be used to address each particular question proposed for certification was not addressed at all. Accordingly, the court denied the plaintiff’s motion for class certification. Subsequently, the parties settled in July 2024. In the litigation captioned In Re Seroquel XR Extended Release Quetiapine Fumarate Antitrust Litigation, 2024 U.S. Dist. LEXIS 49646 (D. Del. Feb. 6, 2024), the plaintiffs alleged that the defendants engaged in an illegal scheme to delay competition in the United States and its territories for Seroquel XR, a prescription medication. The court granted the direct purchaser class plaintiffs’ (DPPs) motion for class certification in relation to their claims against the defendants regarding the purchase of Seroquel XR. The DPP class was defined as all persons or entities in the United States who directly purchased specific strengths of brand or generic Seroquel XR from any of the defendants between August 2, 2015, and April 30, 2017. Id. at *2. The court determined that the class was sufficiently numerous and geographically dispersed. The court found several common questions of law and fact that were central to the claims and defenses of the class, including whether the defendants suppressed competition, illegally maintained monopoly power, and caused antitrust injury through overcharges. The court found that the DPPs, including Smith Drug and KPH Healthcare Services, Inc., were adequate representatives of the class because their claims were typical of those of the class, and they would adequately protect the interests of the class members. As to the Rule 23(b) requirements, the court held that questions of law and fact predominated over individual issues, thereby making a class action the superior method for adjudicating the claims. The court also held that concentrating the claims in one action would provide efficient and manageable adjudication. The plaintiffs in In Re EpiPen Direct Purchaser Litigation, 2024 U.S. Dist. LEXIS 115224 (D. Minn. July 1, 2024), the drug wholesalers Rochester Drug Co-Operative, Inc. and Dakota Drug, Inc., filed a class action against Mylan Inc., Mylan Specialty L.P., and a group of pharmacy benefit managers, over alleged anticompetitive practices related to the EpiPen. The plaintiffs asserted that Mylan engaged in bribery and kickbacks with pharmacy benefit managers to maintain a monopoly and raise prices in violation of the RICO and the Sherman Antitrust Act. The wholesaler plaintiffs filed a motion for class certification pursuant to Rule 23, and the court denied the motion. The plaintiffs sought to certify a class consisting of wholesalers who bought EpiPens directly from Mylan between January 1, 2013, and December 31, 2020. The court determined that the plaintiffs failed to meet the numerosity, adequacy, or predominance requirements. The court opined that the proposed class was “comparatively small with mostly large individual claims,” which, while potentially qualifying under numerosity requirements, did not meet the necessary standards. Id. at *23. The court also ruled that Rochester and Dakota did not satisfy the requirement for accurate class representation as they could not represent the class effectively because they were allegedly harmed by the same actions that benefited other members, such as additional service fees, rebates, and inventory gains resulting from EpiPen price hikes. Accordingly, the court held that the class was not sufficiently numerous, and the putative class members held conflicting interests. Additionally, the court stated that the plaintiffs failed to demonstrate that the alleged bribery and kickback scheme had a uniform impact on all class members, and thus, common questions did not predominate over individual issues. For these reasons, the court denied the motion for class certification because class action litigation was not superior to the individual joinder of other drug wholesalers. One case in this industry raised ascertainability issues even prior to class certification – Mayor And City Council of Baltimore, et al. v. Merck Sharp & Dohme Corp., 2024 U.S. Dist. LEXIS 154841 (E.D. Penn. Aug. 28, 2024). The plaintiffs filed an antitrust class action alleging that the defendant engaged in illegal conduct that foreclosed competition in a significant portion of the rotavirus vaccine market. The plaintiff is a third-party payor that paid for all or part of the purchase price of vaccines, including the defendant’s RotaTeq vaccine, pursuant to its obligations under its self-funded health insurance plan. The defendant moved to strike the class allegations, and the court denied the motion. The plaintiff sought to represent a class of all entities that: (i) are third-party payors that (ii) have purchased, paid, and/or provided reimbursement for some or all of the purchase price of RotaTeq; (iii) for consumption by their members, employees, insureds, participants, or beneficiaries (iv) in one of the Repealer Jurisdictions (v) after March 3, 2019, and (vi) do not fall within any of the two exclusion categories. The defendant argued that the class could not be certified because there would be no administratively feasible

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