October 16, 2018

End-payor and direct purchasers' bids for class certification were granted in Massachusetts federal court Monday in the pay-for-delay litigation against drugmakers Medicis Pharmaceutical Corp. and Impax Laboratories Inc. over the generic version of Medicis’ acne medication Solodyn.

U.S. District Judge Denise J. Casper certified a class of direct buyers of the drug, as well as a class of consumers who said Impax and other companies colluded with Medicis to limit Solodyn's competition, in turn keeping the drug's price high.

Judge Casper rejected the drugmakers’ argument that direct purchaser class members should be consolidated based on corporate structure in an attempt to show that the members were not numerous enough.

“Defendants have provided no legal support for their argument that class members with common corporate parents should not be considered distinct entities for class certification purposes,” she said.

Finding that Montana’s consumer protection statute does not allow a class action, she cut the Montana statute from the consumer's certification bid. The drugmakers challenged the consumers' invocation of numerous laws from other states, claiming they do not apply, but — with the exception of the Montana statute — Judge Casper allowed the state claims to proceed.

The consumer class sought an injunction, seeking an end to the allegedly anti-competitive collusion between the drugmakers, but Judge Casper shot this request down, ruling that an injunction is incidental to the “vast monetary damages” the consumer class seeks.

The direct buyers staved off arguments that their expert's methodology is not reliable enough to show common impact among the class members.

“To the extent defendants further dispute whether the Medicis-Impax agreement stifled competition and the date of sustained generic entry absent the Medicis-Impax agreement, these are questions for the jury to resolve, not the court at class certification,” Judge Casper said.

The consumers were able to convince the judge that they will be able to show a jury antitrust injuries through common proof.To access the full article, click here.

To access the full article, click here.

Cohen Milstein is a member of the Plaintiffs' Executive Committee in In re Solodyn Antitrust Litigation.