Analysis Group Support Aids Defeat of Class Certification in Pharmaceutical Antitrust Suit

August 31, 2021

Analysis Group was retained on behalf of AbbVie and Teva, the defendants in a multidistrict antitrust suit brought by purchasers of the cholesterol drug Niaspan. The plaintiffs alleged that AbbVie, which manufactured branded Niaspan, engaged in a reverse payment settlement with Barr (which was acquired by Teva in 2008) in return for Barr delaying bringing a generic version to market. The plaintiffs, a group of end payers for and individual purchasers of Niaspan, sought certification as a class to sue the drugmakers under the antitrust, consumer protection, and unjust enrichment laws of 26 states. After certification was denied on a number of grounds, certification was sought again on behalf of a smaller group comprising only end payers (such as insurers and pension funds).

An Analysis Group team led by Managing Principal Stephen Fink and Manager Ngoc Pham provided analytical and research support to counsel and expert Donald Dietz, who filed an expert report and testified at deposition. Mr. Dietz’s submissions focused on Federal Rule of Civil Procedure 23’s ascertainability requirement that there be a reliable and administratively feasible mechanism for determining class membership. Rebutting an opposing witness, he opined that the plaintiffs had understated the complexity of their six-step method for excluding non-members of the class (such as fully insured health plans or intermediaries); had not addressed whether it was possible to obtain the data necessary to separate members from non-members; and had not produced an estimate of the time or cost of determining membership. Mr. Dietz also pointed out several errors in the opposing expert’s submissions.

Citing Mr. Dietz’s submissions, a judge in the US District Court for the Eastern District of Pennsylvania again denied certification, holding that the proposed method failed to satisfy the Circuit’s ascertainability requirement. In his opinion, the judge wrote that the plaintiffs “may not adopt a methodology that changes as defendants test its reliability and, in the end, fails to accomplish what is required.”