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Zetia Buyers Granted Cert. Despite Small Class Size


August 24, 2020

A Virginia federal judge granted class certification Friday to Zetia direct buyers accusing Merck and Glenmark Pharmaceuticals of conspiring to keep a generic version of the cholesterol drug off the market, rejecting attacks on the small size of the class and the companies representing them.

U.S. District Judge Rebecca Beach Smith fully adopted the recommendation for certification of U.S. Magistrate Judge Douglas E. Miller, finding that 35 direct buyers are enough for a class, and they’ll be adequately represented by named plaintiffs FWK Holdings LLC, Cesar Castillo Inc. and Rochester Drug Co-Operative Inc., despite RDC’s bankruptcy and other issues highlighted by the drug makers.

While 35 class members puts the size in a “gray area” between 40 or more usually deemed sufficient for certification and under 20 deemed too few, Judge Smith concluded that certification here would make the case more economical to handle. She also rejected drug maker assertions that the class members’ “financial resources” weighed against concerns that they’d have trouble participating in a major litigation from across the country.

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Drug buyers claim that Glenmark agreed to not release their generic version of Zetia, Merck’s “blockbuster” cholesterol drug, for about five years. In return, plaintiffs claim that Merck agreed to drop the patent infringement claims against Glenmark and would not release their own Zetia generic during the 180-day exclusivity period following Glenmark’s generic release.

Claims from other buyers are also moving forward, with Judge Miller recommending certification for a group of end-payors this month.

Judge Miller recommended certification for the direct buyers in June. His recommendation, adopted wholly Friday, called for a class of direct Zetia buyers from November 2014 until June 2017. Judge Miller, however, did cut back the proposed class pushed by the plaintiffs, excluding members who only bought generic Zetia from Par Pharmaceutical. Par, which distributed generic Zetia for Glenmark, cut a deal with plaintiffs that won final approval in March, and claims pegged to purchases from the company were deemed blocked by a federal limitation to antitrust claims for damages coming only from direct buyers.

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The direct purchasers are represented by Glasser & Glasser PLC, Hagens Berman Sobol Shapiro LLP, Hilliard & Shadowen LLP, Sperling & Slater PC, Kessler Topaz Meltzer & Check LLP, Roberts Law Firm PA, Nussbaum Law Group PC, Shepherd Finkelman Miller & Shah LLP, Berger Montague, Taus Cebulash & Landau LLP, Faruqi & Faruqi LLP, Cohen Milstein Sellers & Toll PLLC and Radice Law Firm PC.

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