Court Lowers The Bar For Numerosity Requirement In Nexium Antitrust Litigation

On the heels of his November 4, 2013 order certifying a class of individual consumers and other payors who alleged that defendant pharmaceutical companies engaged in anti-competitive practices resulting in overcharges for the drug Nexium, Judge William G. Young of the District of Massachusetts entered an order on December 11, 2013, this time certifying a class of "Direct Purchaser" wholesalers and retailers who purchased branded Nexium directly from defendant AstraZeneca. While Judge Young's November 4, 2013 memorandum and order focused primarily on discussion concerning the Rule 23(b)(3) damages class including members lacking any injury from the defendants' alleged practices, the most notable aspect of this most recent order is the Court's discussion of Rule 23(a)'s numerosity requirement. Download In re Nexium Antitrust Litigation Civil Action No 12 md 02409 WGY

Wholesalers, retailers, and consumers brought this putative class action against several defendants for alleged violations of federal antitrust laws involving AstraZeneca's heartburn medication, Nexium. Wholesaler and retailer plaintiffs sought certification of a class of "Direct Purchasers" who purchased Nexium directly from AstraZeneca and who will purchase generic Nexium directly from one or more of the other "Generic Defendants." Unlike the defendants' opposition to the previous consumers' motion for class certification, this time the defendants strongly contested whether the Direct Purchaser plaintiffs satisfied Rule 23(a)'s numerosity requirement.

At the outset, the Court noted the general rule that classes exceeding forty plaintiffs are deemed sufficient for Rule 23(a) purposes. However, the Court noted that some classes of fewer plaintiffs have previously been certified in the District of Massachusetts. Specifically, the Court referenced In re Prograf Antitrust Litig., No. 1:11-cv-10344-RWZ, 2013 WL 2395083 (D. Mass. Spr. 23, 2013) (Judge Zobel certified a class of twenty-five pharmaceutical wholesalers) and In re Citigroup, Inc. Capital Accumulation Plan Litig., No. 00cv11912-NG, 2010 WL 9067986 (D. Mass. Jan. 6, 2010) (Judge Gertner certified a subclass of twenty participants in an employee stock compensation program). In Nexium, the Direct Purchaser plaintiffs and defendants presented conflicting evidence as to the number of putative class members. Plaintiffs' expert measured the putative class according to two "but-for" generic drug entry dates, April 14, 2008 and...

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