Direct buyers of, and end payors for, prescription drug used for treatment of opioid dependence sued drug’s manufacturer and its affiliates asserting State and Federal antitrust violations. The District Court certified a class, and the U.S. Third Circuit Court of Appeals affirmed.
The defendant, on appeal, did not dispute that the purchasers provided common evidence showing that the class paid more for Suboxone products. The defendant argued, however, that it could lawfully raise the prices on Suboxone tablets and change its rebate program, hence the purchasers have no antitrust injury. “The Purchasers’ theory of their case, however, is not simply that Reckitt’s pricing of brand tablets individually caused harm. Rather, they allege that the totality of Reckitt’s actions, such as raising prices, withdrawing tablets from the market, providing rebates only for film, disparaging the safety of tablets, and delaying the generics’ entry by filing a citizen petition and not cooperating in the REMS process, suppressed generic competition and thus violated the antitrust laws. They contend that such conduct resulted in the following antitrust injury: having to pay more for brand Suboxone products when less-expensive generic tablets should have been available but were not because of Reckitt’s actions. Reckitt incorrectly asks us to examine each of these acts individually. Rather, we look at all the acts taken together to determine whether they show the willful acquisition or maintenance of a monopoly. The common evidence here would be used to prove that these actions occurred and together suppressed generic competition, and thereby caused the Purchasers to buy the higher-priced brand Suboxone products because Reckitt’s actions made it difficult for the less expensive generics to compete. Thus, common evidence exists to prove the Purchasers’ antitrust theory and the resulting injury.”
The Court then rejected defendant’s challenges to the class representative’s adequacy based on hypothetical conflicts as purely speculative. “Second, Reckitt’s claim that Burlington has ceded control of this litigation to class counsel, and that this creates a risk of conflicts, does not render Burlington an inadequate representative. Reckitt cites no precedent from this Court for its argument that a class representative must ‘control’ the litigation. Indeed, we have observed that it is counsel for the class representative and not the named parties…who direct and manage class actions. Every experienced federal judge knows that any statements to the contrary are sheer sophistry. Moreover, Burlington is not a disengaged representative. The record shows that Burlington is aware of its role as a fiduciary, understands the basis for the claimed injury, has an incentive to recover its proportionate share of damages, monitors the litigation, produced documents, and has the requisite interest in and knowledge about the case to satisfy the adequacy requirement.”
In re Suboxone Antitrust Litigation, 967 F.3d 264 (3rd Cir. 2020).